From this morning’s Chronicle of Higher Ed (here).
The state of Maryland and lawyers representing historically black colleges have agreed to mediation after a federal judge ruled this month that the state had failed to fully desegregate its public higher-education system. The ruling stemmed from a 2006 lawsuit filed by students and alumni of the state’s historically black universities.
That group accused the Maryland Higher Education Commission of allowing traditionally white institutions to duplicate the unique, high-demand programs that would have made the black colleges more competitive for students. A federal judge in Baltimore agreed, saying that the black colleges were more segregated now than they were decades ago.
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I think that mediation in this context is more appropriate than litigation because it more closely resembles the political process that the Maryland Higher Education Commission is supposed to use when it allocates funds. It seems that it is more likely to result in a better resolution for the future students of the Maryland university system than litigation since the plaintiffs argument seems to be that the offering of more options and choices for students throughout the state is somehow prejudicial. Ultimately, issues of race, in society and in the university setting, will not be resolved until our country decides to follow Chief Justice Roberts’ advice from his decision in Parents Involved, “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
I found this article to be interesting because of the underlying interests of all the parties involved. I am curious as to who the parties specifically involved are as well. It seems that the two parties being represented are for 1) historically black colleges and 2) the Maryland Higher Education Commission. This is interesting because I would imagine that the first party is included within the second party, but only represents a fraction of the total members. I would think that non-historically black colleges would have a strong interest in having their interests represented because a favorable decision for the historically black colleges would seem to deprive other schools of offering certain programs that presumably entice prospective students. I would imagine that the education commission would have a conflicting interests in keeping all of its members content and allowing the most members possible to offer enticing programs to attract both Maryland and out-of-state students. The article states that the historically black colleges may have first become frustrated from “very large investments” given to traditionally white schools, so I wonder if the mediation will turn to reallocating these investments to favor historically black colleges in exchange to allow other schools to continue offering these popular programs. I think that it will be interesting to see what both parties try to accomplish in mediation and what agreement they come to.
The race issue can be so volatile that it may cause certain mediation approaches that would normally be effective to backfire. Take, for example, the transformative, or understanding-based model of mediation, which aims to add party empowerment to that of enhanced understanding between parties. This is where mediators attempt to clearly convey their understanding of each party’s position, in the hopes that the opposing party will come to understand this position. However, it should be not be overlooked that such a claim to “understand” a very unique prospective of another race can be looked upon as insulting, which may cause that party to become hostile during the mediation. Growing up in the inner-city, this is a very real sentiment among some of the African-American community (“white people will never understand our struggle, and it’s arrogant for them to believe that they can.”) This is not to say that this sentiment is warranted or unwarranted, but it is a wild card factor that should cause the mediator(s) in this situation to very carefully consider the best approach during this conflict.
As mentioned in a previous comment, many Americans are particularly sensitive when it comes to racism. Although the United States’ judicial system has played a significant role in desegregating our country, I find Judge Blake’s suggestion to mediate these issues very appropriate given the circumstances. Although litigation would provide more legal precedent, it is likely that the parties have more important objectives in mind: (1) reaching a settlement that is fair for both sides and (2) maintaining, most likely improving, their relationship. That is not to say that litigation cannot fulfill both of those—but it would pose a risk of harming their relationship. A strong relationship between the colleges and the education commission is necessarily vital for Maryland’s educational system to thrive and improve. As a recent graduate from a Maryland University, I support their decision to mediate and hope they are able to reach a settlement that adequately addresses both of those objectives.
I find it interesting that this mediation to determine how Maryland should fix the problem of college program duplication was suggested by the judge. In having the important desegregation legal issues decided by a court, the parties have avoided a common criticism of mediation—that the decisions are private and fail to set legal precedent. At the same time, the parties have recognized that the variety of possible outcomes in mediation may be more expansive and appropriate than any possible legal remedy. Judge Blake’s suggestion to go to mediation and the parties’ agreement to do so displays an attempt to play on the strengths of both litigation and mediation. This will hopefully allow the parties to come up with solutions that are helpful for the educational system of Maryland as a whole.
This is probably a good idea.
I feel that the process of mediation in this case and the results of the mediation will be interesting for several reasons.
If the issue is settled at mediation, it will be interesting to see what types of solutions the parties come up with. If the issue is not settled, I would hope to know why the parties were unable to settle and the ultimate barrier to settling. Any further litigation process that occurs as a result of a failed settlement will also be interesting to follow.
In our ADR class, we learned about both evaluative and facilitative methods of mediation. If the mediator in this case takes an evaluative approach, I feel that he or she may have a difficult time evaluating the parties’ positions and offers. Because race is such a sensitive issue in our country, it may be hard for the mediator to predict whether the parties’ respective positions are realistic or practical. If the mediator takes a facilitative approach, it will be interesting to see whether the parties have any other interests which they may not have been aware of before the mediation process occurred as well as what those interests are.
It will be interesting to see who mediates this issue for the parties. Because race has played such a historic role and continues to be a relevant issue in our country, the cultural characteristics of the mediator may be very important. If the mediator is black or white, the parties may feel that he or she is biased toward whichever party he or she shares a common race. However, if the mediator is not black or white, the parties may feel that he or she does not fully understand the parties’ positions because of a lack of common experience or perspective. Therefore, the choice of mediator in this issue will be very interesting.