Affirmative
Action's Confusing Curriculum Ruling Against University of Georgia's System
Is Latest in Series of Conflicting Court Decisions Affirmative
Action's Confusing Curriculum Ruling Against University of Georgia's System
Is Latest in Series of Conflicting Court Decisions
By Edward Walsh
Washington Post Staff Writer
Tuesday, September 4, 2001; Page A02
In the mid-1990s, officials at the University of Georgia thought they had devised a system to achieve two important goals: creating a more racially diverse student body at the state's major public university while remaining within the confines of the increasingly confusing legal guidelines governing affirmative action programs.
The key to the Georgia system was called the Total Student Index (TSI). Under it, students who were not automatically admitted on the basis of high school grades and standardized test scores, but who were close to qualifying, were assigned numerical scores based on about a dozen factors, such as whether they would be the first in their family to attend college. A high TSI score was often enough to pull the student into the incoming freshman class.
Race was only one of the TSI factors, but it carried the most weight, giving all nonwhite applicants a significant boost. But university officials reasoned that they were safely within the law because, in 1978, the swing vote on a divided Supreme Court said that attaining a diverse student body was a constitutionally permissible goal for colleges and universities, and that "ethnic diversity" was one element that school administrators could consider in pursuing that goal.
Last week, a three-judge federal appeals court panel in Atlanta told the University of Georgia officials that they were wrong. The ruling by the 11th U.S. Circuit Court of Appeals panel was the latest in a series of court decisions that have further muddled the issue of affirmative action in higher education.
Two other federal appeals courts have addressed the question in recent years and they reached opposite conclusions, one upholding the use of race as a factor in admissions and the other rejecting it. The Supreme Court refused to review either decision. Meanwhile, two federal district court judges have separately upheld the undergraduate admissions policy at the University of Michigan and struck down the law school admissions policy at the same school. Those rulings have been appealed and could eventually reach the Supreme Court.
Amid these confusing signals, colleges and universities have been reevaluating their admissions policies with an eye on the courts, said Sheldon E. Steinbach, general counsel of the American Council on Education. "It does encompass some degree of gazing into a crystal ball," he said. "It is not clear what is clearly permissible. I think almost every major state system has gone through it to make sure they are not totally out of compliance."
Experts in higher education said variations of the University of Georgia admissions system are widely used at large, public universities across the country. One reason is that, unlike elite private universities, these public institutions lack the resources to review every student application individually. Instead, applicants are assigned numerical scores based on their grades, test scores and other factors, which often include race, to determine who qualifies for admission.
Barmak Nassirian, associate executive director of the American Association of Collegiate Registrars and Admissions Officers, said the big state schools have little choice. "You could keep the entire faculty reading applications all year and not get through them," he said. The University of Georgia, which gets about 14,000 applications a year, made that argument before the appeals court.
But writing for the unanimous three-judge panel, Judge Stanley Marcus said: "The rejoinder to this is obvious: If UGA wants to ensure diversity through its admissions 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."
Marcus and the other judges ruled that the TSI system was a "rigid, mechanical approach" that did not meet the constitutional standard that any race-conscious policy must be "narrowly tailored" to achieve a permissible goal. The Georgia ruling, as have some of the earlier federal court decisions, also called into question a central tenet of higher education affirmative action programs: whether attaining a diverse student body is a "compelling" state interest that would justify a race-conscious admissions policy. Higher education officials argue that it is.
"The debate has gotten so technical and high-stakes that what is getting lost is the concept of the education goals of the institutions," Nassirian said. "There really is an educational dimension to the basic task of putting [an incoming] class together that does involve some measure of diversity. You cannot have a major research institution of a state with a class that does not reflect the society around it."
The appeals court panel did not reject this argument but said that it remains an open question. The root of this legal dispute, the panel said, lies in the nature of the Supreme Court's 1978 Bakke decision, the case that is the foundation for higher education affirmative action programs. In that decision, a five-justice majority struck down the use of a separate admissions system for minority applicants at the University of California at Davis medical school.
But a different five-justice majority also reversed a California Supreme Court ruling that prohibited any consideration of race in admissions. The late Justice Lewis F. Powell Jr. was the key vote in both majorities, and it is his opinion, saying that universities could consider race as one factor in seeking the "compelling" goal of a diverse student body, that the University of Georgia and others have relied on in devising affirmative action programs. But the appeals court panel noted that no other justice joined in Powell's opinion.
"We think it important to underscore that the constitutional viability of student body diversity as a compelling interest is an open question, and ultimately is one that, because of its great importance, warrants consideration by the Supreme Court," the panel said. Legal and higher education experts agree that eventually the Supreme Court will have to revisit the issue to sort out the growing confusion over the meaning of the Bakke decision.
"Bakke is so controversial because it's very hard to tell how many justices were agreeing with Powell," said Ann D. Springer, associate counsel of the American Association of University Professors. "There is increasing disagreement over what it meant."
© 2001 The Washington Post Company
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