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The Coalition for Equity and Excellence in Maryland Higher Education v. Maryland Higher Education Commission

United States District Court, D. Maryland

November 8, 2017

THE COALITION FOR EQUITY AND EXCELLENCE IN MARYLAND HIGHER EDUCATION, et al.
v.
MARYLAND HIGHER EDUCATION COMMISSION, et al.

          MEMORANDUM

          Catherine C. Blake, United States District Judge.

         TABLE OF CONTENTS

         I. INTRODUCTION .............................................................................................................. 2

         II. PROCEDURAL HISTORY ................................................................................................ 4

         III. PRELIMINARY ISSUES ................................................................................................... 7

         A. Standing .................................................................................................................. 8

         B. Defendants' Daubert Motion .................................................................................. 9

         1. Standard for Admissibility ........................................................................ 10

         2. Reliability of Conrad and Allen's Testimony ........................................... 11

         C. Permanent Injunction ............................................................................................ 19

         IV. PROPOSED REMEDIES ................................................................................................. 21

         A. The State's Remedial Proposals ............................................................................ 22

         B. The Plaintiffs' Remedial Proposals ...................................................................... 23

         1. New Programs ........................................................................................... 25

         2. Academic Program Transfers ................................................................... 27

         a. Faculty and Students ........................................................................... 28

         b. Partnerships and Investments ............................................................. 31

         c. Maryland's Workforce Needs in STEM and Nursing ........................ 32

         d. UMUC Issues ..................................................................................... 32

         3. MHEC Program Approval Process ........................................................... 35

         4. Effectiveness of the Plaintiffs' Proposed Remedy .................................... 38

         5. Cost of the Plaintiffs' Remedial Proposal ................................................. 40

         6. Impact of the Plaintiffs' Proposal on Institutional Accreditation ............. 44

         C. The HBIs' Remedial Proposals ............................................................................. 45

         1. Coppin ....................................................................................................... 46

         2. Morgan ...................................................................................................... 47

         3. UMES ....................................................................................................... 48

         4. Bowie ........................................................................................................ 48

         V. HISTORICAL RECORD .................................................................................................. 49

         A. Historical Support for Unique, High-Demand Programs ..................................... 49

         B. Previous Remedies Under Fordice Standard ........................................................ 54

         1. Mississippi ................................................................................................ 54

         2. Tennessee .................................................................................................. 57

         3. Alabama .................................................................................................... 59

         4. Louisiana ................................................................................................... 60

         VI. ANALYSIS ....................................................................................................................... 61

         A. New Programs ....................................................................................................... 63

         B. Program Transfers ................................................................................................. 66

         C. Funding for Recruitment, Financial Aid, and Marketing ..................................... 68

         D. MHEC Process ...................................................................................................... 69

         VII. REMEDY FOR MARYLAND ......................................................................................... 69

         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 (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”).[1] 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 (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).[2] 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).[3] 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., 137 S.Ct. 1645, 1650 (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 (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.[4] 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 (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); see also Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 141 (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. 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). 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). 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[5]

         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)).[6]

         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) (“[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).[7] 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”).[8]

         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 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) (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. Because any methodological weaknesses present here go to weight, rather than ...


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