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The University of Michigan Law School’s affirmative action case, decided earlier this month, hasn’t just split the circuits on the issue of whether race-conscious admissions policies are constitutionally permissible. For schools like the University of Georgia, whose own policy of granting racial preferences in undergraduate admissions was struck down just last year, the Michigan decision may renew discussion about how the cases differ, and about the value of such programs. UGA no longer considers race in undergraduate admissions, and the number of black students in the freshman class declined. But at the law school, which managed to keep race as a factor in its admissions after settling a reverse discrimination suit filed by rejected students, the number of black students is increasing. The University of Michigan Law School case, decided May 14 by the 6th U.S. Circuit Court of Appeals, upheld the law school’s race-conscious admissions policy in a 5-4 decision called Grutter v. Bollinger. Another suit, dealing with the university’s race-conscious undergraduate policy, is pending before the court. Six years earlier, however, the 5th Circuit ruled in Hopwood v. Texas that the University of Texas School of Law could not consider race in its admissions process. And in 2001, in Johnson v. Board of Regents, the 11th U.S. Circuit Court of Appeals affirmed a district court ruling finding the University of Georgia’s race-preferenced admissions policy unconstitutional. If you ask A. Leroy “Lee” Parks Jr. of Parks, Chesin, Walbert & Miller, the attorney who represented the Johnson plaintiffs, about the difference between these cases, he laughs, and says, “The composition of the court.” And that’s certainly part of it. But the admissions policies at issue in the Michigan and Georgia cases do differ. Michigan’s policy is more subjective; Georgia’s more objective and formulaic. “There was more of a reliance on numbers in the Georgia case,” said Alfred A. Lindseth, a partner and head of Sutherland Asbill & Brennan’s education practice. “Georgia had more — I won’t say numerical quotas — but [Michigan's] admissions system differed significantly from the Georgia system, and Michigan was more subjective.” Prior to the resolution of Johnson v. Board of Regents, UGA had a three-stage undergraduate admissions process. The first stage was automatic grants or denials of admission based on GPA and test scores only, without regard to the applicant’s race, according to Russell D. Willard, spokesman for the state attorney general’s office, which represented the university in Johnson. For those with borderline scores, Willard said the school applied the Total Student Index. This assigned points for factors including race, legacy (whether the applicant was the family member of an alumnus) and various talents, such as music. POINTS FOR RACE According to the 11th Circuit’s opinion, an applicant received 0.5 points for being non-white; other than a score carried over from the first stage, only SAT or ACT scores were worth more. Applicants again on the cusp were then individually evaluated by admissions officers. Race was not a designated factor in this stage. As the 11th Circuit’s opinion said, “Notably, this is the only stage … where an applicant’s file is actually read and qualitatively evaluated by admissions officers rather than being processed mechanically based upon the data specifically requested.” Judge Stanley Marcus of the 11th Circuit, who decided the Johnson case, wrote in his summary of the district court’s ruling that “UGA’s real interest was not diversity, but rather obtaining a percentage of non-white students equivalent to the representation of non-white groups in the population at large.” The University of Michigan Law School’s system, by contrast, provides no automatic admission based on grades and test scores. The school looks at an applicant’s whole file, including, according to the opinion in Grutter, “soft” variables such as the enthusiasm of recommenders and the quality of the undergraduate institution. After considering these variables, the school sometimes admits people with relatively low scores based on other factors, including race. But according to the Grutter majority, Michigan wasn’t trying to reach a certain percentage of African-Americans in its class, though it did seek to enroll a “critical mass” of underrepresented students. A statistical expert cited in the majority opinion, however, “predicted, for example, that if the Law School could not consider race, under-represented minority students would have constituted only 4 percent of the entering class of 2000, instead of the actual enrollment figure of 14.5 percent.” And the Grutter dissent claimed that race was worth more than one full grade point of college GPA, or at least an 11-point and 20th percentile boost on the LSAT. The law school’s underrepresented minority enrollment had fluctuated between 13.5 percent and 20.1 percent between 1993 and 1998. WHAT GOOD IT DOES One purpose of such admissions systems is, of course, to increase minority enrollment. The question is how well it works. UGA stopped using race as a factor in undergraduate admissions in 2000, and stopped giving preference to legacies, who likely included few blacks, last year. “For this year, on the undergraduate level, the university has taken a hiatus, or a year where we are reviewing different ways to make admission decisions,” said Nancy G. McDuff, director of undergraduate admissions. What difference does a year — and a different admissions policy — make? A lot or a little, depending on how you spin the numbers. McDuff said that between autumn 2000 — the last year race preference was offered — and 2001, black students’ representation in the freshman class fell from about 6 percent to just under 5 percent. UGA’s freshman classes have roughly 4,000 students. There were 256 black students in the 2000 class; the number fell to 207 the next year. That’s a 24 percent drop. McDuff said it is too soon to know how many black students will enroll in the fall 2002 freshman class, but added, “We’re not going to lose any ground in African-Americans for this year over last year.” DEFENDING LAW SCHOOL POLICIES UGA’s law school also has had to defend its admissions policies. In May 2000, Parks sued UGA law on behalf of two white applicants who claimed they were denied admission based on their race. In February 2001, the case settled when the school admitted one of the students and gave both a financial settlement. “The impact of the settlement was that we didn’t have to change our admission practices,” said Law Dean David E. Shipley. “I think we’re doing pretty well under the circumstances.” According to data from the law school, 10 percent of the first-year class of 2000, or 20 of 201 students, were black. The numbers rose in 2001, when 11 percent, or 25 of 236 students, in the entering class were black. Race “is one of many, many factors that can be looked at by members of the admissions committee. But there is no point system or weighting or anything like that,” he said. “It is much more of the, I guess you would say, system that we think is consistent with Bakke.” Giles W. Kennedy, director of law admissions at UGA, described the school’s admissions process. Like Michigan’s system, UGA law school has no automatic admission for people based solely on LSAT scores and grades. Unlike UGA’s former undergraduate admissions policy, the law school has never used the Total Student Index and doesn’t assign numerical values to race, Shipley said. After an analysis of grades and test scores, admissions committee members individually review applicants’ files, looking at academics as well as more subjective factors such as public interest work and perhaps race. Race isn’t always considered because applicants don’t have to reveal it. The law school’s application contains a diversity essay, but it’s optional, and Kennedy said only about one-third of applicants write one. Shipley said the application says that the law school believes its overall environment may be enhanced by factors such as a person’s race, gender or socioeconomic status. The diversity essay gives potential students a place to discuss how their experiences affected their lives or could contribute to the school. Kennedy, who’s worked in admissions for 21 years, said he doesn’t know how large a factor race is in the school’s admissions process. “I can’t speak to how a specific committee member will weigh off on the whole package,” he said, explaining that he and the other seven admissions committee members evaluate more than 2,000 applications a year. “That’s not a question I can really answer. It’s just one of the factors people consider.” Kennedy said the process is subjective. “If somebody likes white fraternity boys from suburban Atlanta, that’s one category they may have. Somebody else may be disposed to farm boys from Bainbridge.” PREDICTING THE FUTURE As for the future of admissions policies that consider race in the wake of the Michigan case — which isn’t authoritative in Georgia — Shipley said there’s been no discussion of changing the law school’s system. UGA’s undergraduate admissions director McDuff said, “I’m pleased to see the Michigan case come out this way. … What we all need is a Supreme Court ruling that affirms the use of race in admissions.” Both the AG’s Willard and Sutherland Asbill’s Lindseth say they think the U.S. Supreme Court is likely to grant certiorari in the Michigan case to resolve the split in the circuits. Parks, who represented the plaintiffs in Johnson, said there’s a dispute over the precedential value of Regents of the University of California v. Bakke, a 1978 high court decision cited heavily in the Michigan case. In Bakke, according to Parks, the court’s final decision was that the university’s race-based program was unconstitutional. But a concurring opinion by Justice Lewis F. Powell Jr. — in which no other justices joined — essentially said such programs may not always be unconstitutional. Because Bakke relies on a concurrence, Parks contends that “most people don’t seriously view Bakke as precedent. It’s just the only case out there.” The only way to resolve the issue of Bakke‘s authority is to argue that Bakke is alive and well, and that alone will drive five votes for review, he predicted. “Some of them [the justices] are willing to bend the Constitution to a moral principle that they think is worthy,” he said. “And others, regardless of the moral principle, don’t have the imagination.”

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