School’s ‘Diversity’ Plan Dealt Setback

WASHINGTON â€”  A U.S. appeals court on Monday struck down the use of a “diversity bonusâ€� for all nonwhite students applying to the University of Georgia, a ruling that appears to set the stage for a Supreme Court showdown on college affirmative action.

“We assume that there is value in having a racially diverse student body,� the Atlanta-based judges said. But a policy of “mechanically awarding bonus points� to minority applicants violates the Constitution’s command that individuals be treated equally and without regard to their race, they said.

The ruling comes in the case of a state university that until 1961 had closed its doors to all African American students. But that history of discrimination against blacks does not justify a policy of “affirmative� discrimination in favor of minority students today, the appeals court said.

The decision is the latest setback for college affirmative action programs, and it comes at a critical time.

Before the ruling, leaders of the University of Georgia had signaled that they would appeal a loss to the U.S. Supreme Court. The justices have been closely split concerning affirmative action and have been awaiting the right case to revisit the issue.

Earlier this year, two federal judges in Michigan issued a pair of conflicting rulings concerning affirmative action. One district judge upheld the University of Michigan’s admissions policy for undergraduates, while a second struck down a similar affirmative action policy for applicants to the law school. Both cases are to be heard in October by a U.S. appeals court.

Now that the Georgia case has cleared the appeals court, it is first in line to go to the high court. Legal experts in the field of higher education say it offers a good test case for the future of affirmative action.

“We believe in the value of student diversity, and this case looks like the best chance in at least half a dozen years for the [Supreme] Court to revisit the decision in Bakke,� said Sheldon Steinbach, general counsel for the American Council on Education in Washington.

In the famous Bakke case of 1978, the justices outlawed the use of racial quotas, but said colleges could use an individual student’s race as a “plus factor� when evaluating credentials. Speaking for himself alone, then-Justice Lewis F. Powell said this limited use of race could be justified as a way to achieve a diverse group of students.

Ever since, most universities have given extra points to qualified minority applicants as a means of achieving greater diversity.

There are exceptions, however. Under initiatives approved by the voters of California and Washington, state universities are barred from using race as a decision-making factor.

And in Texas, a U.S. appeals court outlawed the use of race as an admissions factor in the case of Cheryl Hopwood, a well-qualified white student who was denied admission to the University of Texas law school. Those judges relied on more recent Supreme Court rulings that frowned upon any use of race as a factor for awarding public contracts or state scholarships.

The Supreme Court refused to hear Texas’ appeal in the Hopwood case because its law school had radically changed its admissions policy after the trial.

As a result, the law on affirmative action remains unclear: Is it the Bakke standard that allows the use of race in admission decisions, or the more recent rulings that forbid its use?

At the University of Georgia, only about 6% of the student body is black; nearly one-quarter of the state’s residents are black.

The university’s admissions policy relies mostly on a student’s high school grades and scores on the SAT. These numbers determine the fate of about nine in 10 applicants, officials say.

But the university awarded applicants extra points for a series of other factors. They included having a parent who went to the university, or being of the “first generation� in a family to go to college. Others receive extra points for extracurricular activities or special academic abilities. Until 1999, the school also gave a slight bonus to male applicants.

Three white female students who were denied admission challenged the system as unfair and unconstitutional, and a federal judge last year agreed with them.

The university suspended the use of bonus points last year after losing in the trial court. But university leaders want to maintain the race-based affirmative action policy; they appealed to the U.S. 11th Circuit Court of Appeals.

In its opinion Monday, the appeals court said the university had failed to justify giving bonus points to minority applicants solely because of their race or ethnicity.

“Racial diversity may be one component of a diverse student body, [but] it is not the only component,� wrote Judge Stanley Marcus, a Reagan appointee who was elevated to the appeals court by President Clinton. “To take a few obvious examples, a white applicant from a disadvantaged rural area in Appalachia may well have more to offer a Georgia public university such as UGA--from the standpoint of diversity--than a nonwhite applicant from an affluent family and a suburban Atlanta high school.�

Marcus said school officials should have used “race-neutral� methods, such as aggressive recruiting and more financial aid for students from low-income families, to increase minority enrollment.

Although university officials say such strategies will not suffice, they announced two weeks ago a slight increase in the number of minority students expected to enroll this fall despite the suspension of the school’s affirmative action policy.

“Aggressive recruitment has paid off,� the university said. Its total minority enrollment is expected to be 1,219 this fall, up from 1,141 last year. However, the number of new black freshmen fell from 249 last year to 201 this year, the school said.

After Monday’s ruling, university president Michael F. Adams issued a statement saying he was disappointed with the outcome and would consult with other officials before deciding whether to appeal.

“Sometimes you are defined by the battles in which you engage rather than those you win,� he said.