Another Attack on Affirmative Action



In the present dreary political climate, another court decision against affirmative action might not warrant special comment. But a ruling last month by a Federal District judge in Savannah, Georgia, is worth considering if only because it illustrates the extent of current hypocrisy.

The case, Green v. Board of Regents, involved a challenge to the admissions policy at the University of Georgia (UGA), the flagship campus of Georgia’s university system. Under the policy, an academic index is computed for each applicant based on grade point average and SAT score. Those whose index exceeds a certain cutoff are admitted, those whose index falls below a lower cutoff are rejected, and those in between move to a second stage where they are given bonus points based on at least ten additional factors, such as whether the applicant participated in extracurricular activities, whether the applicant worked during the summer, and so on. One of these additional factors earning bonus points is minority status. The bonus points are added to the academic index to yield a new index and once again there are upper and lower cutoffs for acceptance and rejection, with those in between going to a third stage where applications are read by at least two admissions officers looking for additional factors that may have been overlooked.

UGA’s admissions policy thus involves an extremely mild version of affirmative action, the type endorsed by Supreme Court Justice Lewis Powell in his plurality ruling in the 1978 Bakke case. Rejecting quotas, Powell wrote that race and ethnicity may be used as one plus factor among others in comparing candidates for admission.

Over the years the courts have been concerned that affirmative action programs not place an "undue burden" on whites. The UGA admissions policy avoided any such undue burden: 75 percent of admittees in 1996 and 88 percent in 1997 were accepted at the first stage of the process, where race and ethnicity played no role. Moreover, only "a handful" of minorities who were accepted at stage two would not have been accepted in the absence of the plus factor accorded them. Another indication that whites did not suffer an undue burden was that despite the university’s affirmative action program, blacks made up only 6.2 percent of the student body but 28.4 percent of the state’s population.

The judge in the case, B. Avant Edenfield, was no friend of racial justice. A few years earlier he had struck down a black majority Congressional district as unconstitutional. Nevertheless, Edenfield was forced to rule in favor of UGA and against the white plaintiff, Craig Green, since Green would not have made the cutoff for admission at the second stage of the process even if he had been given the plus points for minority status. But Edenfield was not done. Even though the case was moot, Edenfield wrote that he would be remiss if he did not offer his views anyway on the University of Georgia’s admissions policy. The policy, he asserted, was really just a quota system in disguise. "UGA cannot constitutionally justify the affirmative use of race in its admission decisions."

In a companion case to Green back in January (Wooden v. Board of Regents, 32 F. Supp.2d 1370), Judge Edenfield had argued that although the "Court recognizes that UGA, decades ago, engaged in segregative admissions," such "temporally remote past practices, without any connection to present discriminatory effects, are insufficient to warrant current racial discrimination in admissions." But one powerful piece of evidence that UGA’s past discrimination has had a continuing negative impact on African Americans was staring him right in the face: One of UGA’s admissions plus factors for which bonus points are awarded is "legacy status" B whether one has a relative who had attended UGA. But since blacks weren’t allowed to enroll at the university until 1961, today’s African American applicants are obviously far less likely than their white counterparts to be "legacies" and thus eligible for bonus points. So past discrimination directly harms present-day blacks.

In Wooden, the NAACP argued that the state had an interest in promoting diversity at the university because when campuses are too white, there is an uncomfortable environment for minority students, thus discouraging other minority students from attending. Judge Edenfield would have none of this. "Even if true, the fact that many black high school students choose, for some reason, not to apply to or attend UGA is not a reason for enacting a racially discriminatory admission policy. All such a statistic would show is black student disinterest for, or bias against, UGA."

That Edenfield can reduce the issue of campus climate to black bias against UGA is quite remarkable. But it would be wrong to conclude that the Judge opposes all efforts to rectify demographic imbalances. Consider one of the other admissions "plus factors" that Judge Edenfield did not feel compelled to offer his views on. That’s right, the University of Georgia gives admissions bonus points to male applicants! Why would this be so? Probably because the gender ratio of UGA’s entering class is 60-40 female to male and we know from other colleges that this is considered a problem. As Tamar Lewin reported in the New York Times last December 6:

For college admissions officials, the underrepresentation of men poses a challenge. Most say they are aware of the gender imbalance, but not overly concerned ?? yet.

But there seems to be a consensus that somewhere beyond a 60?40 split, there comes a moment when a school ceases to be a comfortable place for both sexes. "We do have some concern about the skew going too far," said Jerry Lucido, director of admissions at the University of North Carolina. "How far is too far? I guess that would be if students here thought it was a problem. We certainly don’t want the reputation that Chapel Hill is not a place for men, because that’s not true."

Lewin further quotes the North Carolina admissions director: "Probably nobody will admit it, but I know that lots of places try to get some gender balance by having easier admissions standards for boys than for girls. Recently, at a school where I was giving a speech, I asked ‘How far down the list are you going for boys?’ and the answer was ‘All the way.’"

To be sure, one can make plausible arguments for giving males an admission preference to obtain a better gender balance and achieve various social goals. But if so, how much more compelling is the case for giving a similar preference to a group who — instead of being historically favored — has been historically excluded? And how much stronger is the case for giving preferences to African Americans who are far more under-represented at UGA than are males? For Judge Edenfield, preferences on behalf of the severely under-represented victims of racial discrimination offend the constitution, while those on behalf of the privileged elicit not a word of comment.

Neither in terms of law nor morality nor logic does Judge Edenfield’s reasoning make sense. But he doesn’t need to make sense because he’s got the power. And there’s only one way we can confront this power B and that’s by rebuilding a mass movement for racial justice.


Stephen R. Shalom teaches political science at William Paterson University in NJ. He is the author of Imperial Alibis (South End, 1993) and is currently working on Which Side Are You On? An Introduction to Politics.


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