By Sharron Hannon
A 1997 lawsuit filed by three white students who claimed they were victims of reverse discrimination in the university’s admissions policies has been marked “case closed.” But the issues raised by the suit are far from settled.
On July 6, U.S. District Judge B. Avant Edenfield made the last of several rulings in the two-year-old case, one of a number around the country challenging the use of race and ethnicity in admissions decisions. Edenfield dismissed the claim of one defendant and ruled that another--who he decided in January was discriminated against under an admissions policy no longer in effect--was entitled to monetary damages of just $1.
But in a move described by a constitutional scholar as “very unusual,” Edenfield then proceeded to offer his opinion on the legality of current UGA admissions practices, which weight race, among other factors, in one stage of the process used to determine the final 10 to 15 percent of acceptances.
“From a lawyer’s perspective, what happened here was quite exceptional,” says Dan Coenen, a professor in UGA’s School of  Law. “Basically, the judge threw the case out and then decided the case. That’s incompatible with traditional practice in judicial decision making.”
Edenfield’s opinion challenges the prevailing Supreme Court decision on the use of race-based factors in admissions--the 1978 Bakke case, involving a white student who claimed he had been wrongfully excluded from the medical school at the University of California, Davis, to make room for minority applicants. The court was sharply divided on how to interpret the Constitution and Title VI of the 1964 Civil Rights Act, which outlaws discrimination in programs or activities receiving federal financial aid. The deciding opinion, written by Justice Lewis Powell, condemned the use of quotas but ruled that admissions officers could take race into account as one of several factors in evaluating candidates.
In the intervening years, Supreme Court rulings in a small number of affirmative action cases--centering on employment and government contracting--have been viewed by some as eroding the Bakke decision. But that is up for debate.
“The lay person wants this neat and clear: Is affirmative action OK or not?” says Coenen. “But it’s not that simple.”
In 1996, the Supreme Court declined to hear an appeal of a ruling by a district court in Texas, where a three-judge panel found that a white woman named Cheryl Hopwood and three other applicants had suffered reverse discrimination in their applications to the University of Texas law school. Justice Ruth Bader Ginsberg wrote that the court would not judge the Texas admissions policy because it had been altered since the case was filed in 1992.
Following the Hopwood rulings, UGA administrators decided to revise a dual-track admissions policy that was used here from 1990 to 1995. Claire Swann, admissions director at the time, says the policy, which allowed somewhat lower academic standards for black applicants than whites, was adopted to increase the number of African-American students on campus. “That was the commitment,” she says, “and we sought to find students who could succeed here and graduate.”
Through the years, the university has tried other strategies to redress a past in which black students were excluded on the basis of race until 1961. “In the early ’70s, there was a time when we filled the freshman class on a first-come-first-served basis for anyone with a B-plus average,” says Swann, whose career in admissions spanned 34 years.
But Edenfield found that Kirby Tracy, who applied for admission in 1995 when the dual-track system was in effect, was discriminated against because his academic record was better than some black students who were admitted that year. Tracy was later admitted to UGA as a transfer student.
The two other plaintiffs in the current case applied in 1996 and 1997 under the revised admissions policy. Edenfield dismissed those claims, finding that race did not play a role in the decisions to deny admission, but also said the university “cannot constitutionally justify the affirmative use of race in its admissions decisions.”
Coenen says he can understand why Edenfield may have wanted to take this action. “The judge has lived with this case for two years, it’s a high-profile case and he has obviously reflected a lot on it,” Coenen says. “So he decided to express his views on the subject.”
UGA’s current practice is to offer admission to most students on the basis of an academic index determined primarily by looking at standardized test scores and grades in core curricula. The remaining 10 to 15 percent of decisions are made by determining what the university calls a “total student index,” figured by adding to the academic index additional points (ranging from .1 to 1) for a number of factors. Those include not only race and gender (.5 for being “non-white” or male), but also, for example, whether a prospective student is a Georgia resident, the child of an alumnus or the first in the family to attend college.
“By far the large majority of students are admitted solely on academic records,” says current admissions director Nancy McDuff. “For the small percentage of students evaluated under the total student index, no single factor determines whether an applicant is admitted or denied.”
Once students above and below an established range for the “total student index” have been admitted or rejected, the remaining applications--several hundred from an initial pool of more than 13,000--are submitted to a final stage where each application is read and evaluated individually.
Plaintiff Craig Green’s application made it to this stage before being rejected, and Edenfield found that while the final evaluations are subjective, there is “no evidence to infer that race plays a factor.”
In the wake of Edenfield’s rulings, the university--along with other institutions across the country--is faced with the continued dilemma of what is legally permissible in admissions.
President Michael F. Adams, in a statement released to media, said the university will review its admissions practices while continuing efforts to “diligently recruit qualified minority students.”
How that will play out is yet to be determined. “This is a grand opportunity for this institution to do some innovative things,” says Sherwood Thompson, new director of the Office of Minority Services and Programs.
Thompson says minority students, especially African Americans, have expressed concerns about the Edenfield ruling. “They’ve been holding court in my office the last few days,” he says. “They’ve expressed displeasure with the fact that there are still debates about the issue of pursuing educational access for minority students since society as a whole makes considerable gains from their inclusion.”
While the university sorts through the issues, Craig Green has not given up on UGA. Like many other students turned down for admission as freshmen, he has said he hopes to transfer to UGA as soon as he has accumulated enough credit hours elsewhere.
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