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An appellate ruling that declares the admissions policy of Georgia’s flagship university to be unconstitutional offers a blueprint for consideration by the U.S. Supreme Court. Calling the constitutional viability of using race to diversify a collegiate student body “an open question,” a panel of the 11th U.S. Circuit Court of Appeals stated that the issue, “because of its great importance, warrants consideration by the Supreme Court.” In a 77-page opinion released Monday, the three-judge panel refused to stop the University of Georgia from granting admissions preference to nonwhite freshman applicants. But the panel’s unambiguous declaration that the UGA freshman admissions process is unconstitutional should be sufficient grounds for college administrators to revamp the process without further judicial intervention, the opinion said. The opinion was authored by 11th Circuit Judge Stanley Marcus. Marcus was joined in the opinion by 11th Circuit Judge Stanley F. Birch Jr. and 7th U.S. Circuit Court of Appeals Judge Harlington Wood Jr., who was sitting by designation. Johnson v. Board of Regents of the University of Georgia, Nos. 00-1430, 00-14382 (11th Cir. Aug. 27, 2001). The ruling also dramatically reinterpreted diversity in a university setting to extend far beyond race. And it sharply criticized UGA admissions policies as mechanical, rigid and designed primarily for administrative convenience. A. Leroy “Lee” Parks Jr., a partner with Parks, Chesin, Walbert & Miller who represented the rejected UGA applicants who sued the school, says he will not continue to seek an injunction against UGA. A year ago, UGA voluntarily suspended consideration of race as a criterion for admission, he says. “If they would simply say, ‘We will abide by this decision,’ then there’s no need for an injunction,” he says. “I don’t have any indication that they’re not doing what they say they’re doing.” In a brief written statement, UGA President Michael F. Adams said he was “clearly disappointed” with the appellate decision. “Sometimes you are defined by the battles in which you engage rather than by those you win,” he said. “I would hesitate to say anything further until we have had in-depth consultation with legal counsel, the chancellor and the governor’s office.” University lawyers Michael D. Kaufman and Mark H. Cohen of Troutman Sanders referred inquiries to Attorney General Thurbert E. Baker’s office. Spokesman Russell D. Willard said that staff attorneys are reviewing the appellate decision, and, after consultation with UGA officials and counsel, “We will determine what our next course of action will be.” The federal appellate ruling affirmed a decision by U.S. District Judge B. Avant Edenfield, who determined last year that UGA’s freshman admissions process — which awarded additional points to applicants who were nonwhite — was unconstitutional. The goal of diversifying a university student body is not a compelling enough reason to employ racial preferences, Edenfield said. Indeed, “UGA’s real interest was not diversity, but rather obtaining a percentage of non-white students equivalent to the representation of these non-white groups in the population at large,” according to Marcus’ summary of the district court ruling. SUITS START IN 1999 Jennifer L. Johnson sued the university in 1999 after her application was rejected, challenging the point bonuses assigned to nonwhite and male applicants biased the applications process against her. Her suit later was consolidated with a complaint filed by freshman applicants Aimee Bogrow and Molly Ann Beckenhauer, whose UGA applications also were rejected in 1999. After Johnson’s suit was filed, Adams ended the practice of awarding bonus points to men. But he left racial preferences in place for the freshman class of 2000. In December 1999, a number of African-American students and prospective UGA applicants intervened on behalf of the university. Though he ruled for the rejected students, Edenfield did not issue an injunction against the university. Instead, UGA offered to admit the three women in the fall of 2000 and voluntarily suspended consideration of race in the admissions process. In affirming Edenfield’s ruling, the appellate panel, however, “decided not to decide” whether the goal of student body diversity is a compelling enough reason to consider race in the admissions process. Instead, it determined that an admissions policy “that mechanically awards an arbitrary ‘diversity’ bonus to each and every non-white applicant” violates the Equal Protection Clause of the 14th Amendment. “Even assuming that student body diversity is a compelling interest, the university’s 1999 freshman admissions policy is not narrowly tailored to achieve this interest,” Marcus wrote. “The Supreme Court has placed as much importance on the requirement that any race-conscious program be narrowly tailored as it has on the requirement that the asserted justification for race-conscious decision-making be sufficiently compelling.” INTERPRETING ‘BAKKE’ But the appellate panel did offer the Supreme Court, should the case get that far, its own view on student body diversity as it relates to racial preferences. Most of the Supreme Court “has never agreed that student body diversity is, or may be, a compelling interest sufficient to justify a university’s consideration of race in making admissions decisions,” the panel pointed out. The panel singled out Bakke v. California Board of Regents, No. 438 U.S. 365 (1978), in which a white applicant to the University of California, Davis School of Medicine successfully challenged the admissions process, claiming there were two separate admissions tracks — one for minorities and one for everyone else. In 1978, a divided U.S. Supreme Court determined the California medical school’s admissions process was unconstitutional. But a different majority reversed the California Supreme Court’s permanent injunction banning the university from using any consideration of race in its admissions process. Justice Lewis F. Powell Jr., the only justice who was part of both majorities, wrote separately that racial diversity was a compelling element of a university admissions program. “No other Justice, however, expressly endorsed that view,” Marcus wrote. “In the years since Bakke, the Court has never returned to whether diversity may be a compelling interest supporting a university’s consideration of race in making admissions decisions.” Parks says the appellate opinion should dissuade universities and private employers alike from using the Bakke ruling to legitimize their use of racial preferences either in admissions or in hiring. Too many schools, Parks says, have argued that Bakke gives them permission to consider race alone as a legitimate way to pursue diversity. “Now, nobody can say that again in the 11th Circuit,” he says. “They actually tell the [district] court, ‘This is why Bakke doesn’t apply.’ “ In doing so, Parks says the appellate panel severely has restricted the ability of an institution or business to use racial preferences to achieve diversity. “They’ve substantially tightened the noose.” DIVERSITY REDEFINED In its opinion, the appellate panel also defined diversity far more broadly than race. Racial diversity may be one component of a diverse student body, Marcus wrote, but “it is not the only component. If the goal in creating a diverse student body is to develop a university community where students are exposed to persons of different cultures, outlooks, and experiences, a white applicant in some circumstances may make a greater contribution than a non-white applicant.” The goal should not be to make racial diversity an end in itself, but rather to create a university community “that resembles the broad mix of cultures, experiences, and ideas to be found in society,” he stated. Race, Marcus continued, “is not necessarily the only, or best criterion … “At UGA,” he wrote, “Individuals who come from economically disadvantaged homes; individuals who have lived or traveled widely abroad; individuals from remote or rural areas; individuals who speak foreign languages; individuals with unique communications skills (such as an ability to read Braille or communicate with the deaf); and individuals who have overcome personal adversity or social hardship — none of the characteristics that make these kinds of individuals ‘diverse’ are taken into account.” In sworn depositions, UGA officials — among them university President Adams — suggested that because of the large number of applications the college receives each year, it cannot examine or evaluate individually those belonging to the majority of applicants. “The rejoinder to this is obvious,” Marcus wrote. “If UGA wants to ensure diversity through its admission decisions, and wants race to be part of that calculus, then it must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals and not merely as members of groups when deciding their likely contribution to student body diversity.” Administrative convenience, he noted, does not necessarily dictate constitutionality. “We are totally unpersuaded by the idea that the only way — or even close to the only way — for a large public university to increase diversity of its student body is to adopt UGA’s system.” FLAWED POLICY At the heart of the Constitution is the dictate that government must treat citizens as individuals, Marcus wrote. “It follows that when a university, in the name of student body diversity, grants preferential treatment to some applicants based on race, it must ensure that applicants are fully and fairly examined as individuals for their potential contributions beyond race to diversity. UGA’s policy fails to do so adequately. “UGA’s policy is not only rigid and incomplete, the benefit it awards each and every non-white applicant is wholly, and concededly arbitrary.” In court documents, university officials — including UGA’s own legal counsel — described the bonus points awarded to minorities as selected “out of the blue,” the opinion noted. “The flaw lies in the policy, and its attempt to reduce the complex range of factors that may reflect an individual’s contribution to diversity to an administratively-convenient, but otherwise rigid and incomplete, formula. … It is primarily through the non-academic factors that UGA can generate a truly mixed group of students, and by weighing race so heavily, UGA necessarily discounts other non-academic factors … that may in some instances be far more accurate barometers of diversity.” In fact, UGA failed to demonstrate to the appellate panel’s satisfaction that eliminating race from the current admissions formulas would reduce the number of nonwhites (including African-Americans, Indians, Hispanics and Asians) admitted as freshmen. Asked at his deposition if he had analyzed the projected change in African-American enrollment if the racial bonus were eliminated, UGA admissions officer John Albright answered, “No.” Nor was there any persuasive evidence in the record, according to the appellate panel, to support the proposition — set forth by the African-American students who intervened on behalf of the current policies — that UGA’s preferential treatment of nonwhite applicants would remedy the effects of UGA’s past discrimination against African-Americans, Marcus wrote. In fact, UGA officials have rejected that notion expressly, and, in 1989, the U.S. Office of Civil Rights determined that UGA effectively had eliminated the vestiges of past discrimination, and with it a justification for continued discrimination against whites, he stated. Despite the appellate panel’s adamance that UGA’s policies are a constitutional violation, the judges declined to issue an injunction to enforce their ruling. None of the plaintiffs, at least two of whom now attend UGA, can show they ever again would be subjected to the discriminatory admissions process. Thus, they no longer are suffering any harm stemming from the unconstitutional policy, Marcus wrote. “If anything, the fact that UGA has voluntarily suspended using race as a factor demonstrates that, regardless of the imposition of prospective injunctive relief, UGA is not prepared to continue relying upon race in the admissions process in contravention of an unambiguous federal court declaration that so rigid and incomplete a use of race to achieve student body diversity is unconstitutional. We are confident that UGA would not ignore the import of a final ruling declaring its policy’s use of race unlawful, and there is no need to consider at this stage what equitable powers a court might invoke if such a final ruling were honored only on a case-by-case basis.” Staff reporter Richmond Eustis contributed to this article.

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