Georgia is one of several states where white plaintiffs are in court charging reverse discrimination in the admissions policies of public universities. A recent ruling in a suit against UGA raises more questions than it answers.
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In July, U.S. District Judge B. Avant Edenfield (BBA '56, JD '58) made the last of several rulings in the two-year-old case, which is one of a number around the country challenging the use of race and ethnicity in admissions decisions. Edenfield dismissed the claim of one plaintiff and ruled that anotherwho he decided in January was discriminated against under a UGA admissions policy no longer in effectwas entitled to monetary damages of just $1.
But then, in a move described by a constitutional scholar as "very unusual," Edenfield 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 10-15 percent of students accepted.
"From a lawyer's perspective, what happened here was quite exceptional," says Dan Coenen, who teaches constitutional law in UGA's School of Law and was once a clerk for U.S. Supreme Court Justice Harry A. Blackmun. "Basically, the judge threw the case outand 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 admissionsthe 1978 Bakke case, which involved 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 order to encourage diversity on campus.
In the intervening years, Supreme Court rulings in a small number of affirmative-action casescentering on employment and government contractinghave 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. "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 ruling, UGA administrators decided to revise a dual-track admissions policy that was used here from 1990-95. Claire Swann, admissions director at the time, said the policywhich allowed somewhat lower academic standards for black applicants than whiteswas 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 where 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 Judge 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 a revised admissions policy. Edenfield dismissed those claims, finding that race did not play a role in the decisions to deny those applications, 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," says Coenen. "It's a high-profile case, and he has obviously reflected a lot on it. Perhaps for these reasons, he decided to express his views on the subject."
UGA's admissions practice since 1996 has involved a three-stage process, with academic criteria a driving component throughout. Most studentssome 85 percent of any incoming classare offered admission solely on the basis of an academic index that is determined primarily by looking at standardized test scores and grades in core curricula. The next 10 to 15 percent of the freshman class is determined using what the admissions office calls a "total student index," which is determined by adding to the academic index additional points (ranging from .1 to 1) for a number of factors. Those factors 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 seek a college education.
"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 applicationsseveral hundred from an initial pool of more than 13,000are 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, but 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 Universityalong with other institutions across the countryis faced with the continuing dilemma of what is legally permissible in admissions.
President Michael F. Adams, in a statement released to media in July, 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, UGA's 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 said shortly after the ruling. "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."
Newspaper columnists and editorial writers also have weighed in on the issues. The Atlanta Constitution and The Red & Black have called for the University to maintain its current admissions policy, while the Atlanta Journal and the Athens Daily News/Banner-Herald have come out against affirmative action in admissionsurging instead that more attention be given to college preparation for underrepresented populations in the K-12 grades.
While the University sorts through the issues, Craig Green hasn't given up on UGA. Like many students turned down for admission as freshmen, he hopes to transfer here as soon as he accumulates enough credit hours elsewhere.
One thing about the Edenfield ruling is certain, says Coenen: "This decision is not the end of the conversation. It's the launching point for more discussion."