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U. of Georgia Cannot Use Race in Admission Policy, Court Rules

ATLANTA, Aug. 27 -- A federal appeals court panel ruled unanimously today that the admissions policy of the University of Georgia, which gives a slight preference in bonus points to nonwhite applicants, was unconstitutional.

The three judges on the panel said the university failed to prove that having more nonwhite students on campus would lead to a more diverse student body. Under some interpretations of the United States Supreme Court ruling in the landmark 1978 Bakke case, the creation of a more diverse student body might have justified the university's giving black students extra points in its admissions calculations. But the federal appeals court rejected that logic.

"Racial diversity alone is not necessarily the hallmark of a diverse student body," the judges on the panel of the United States Court of Appeals for the 11th Circuit wrote, "and race is not necessarily the only, or best, criterion for determining the contribution that an applicant might make to the broad mix of experiences and perspectives" that create diversity.

The court added that the university "did not even come close" to making the case that a greater variety of races automatically equals diversity.

Today's ruling is the latest of several court decisions barring race as a factor in school admissions. A federal appeals court banned the practice in Texas, Louisiana and Mississippi in 1996, and earlier this year a federal judge struck down the University of Michigan's race-conscious admissions policy used in its law school. But advocates of affirmative action took heart last December when a federal judge in Detroit upheld the University of Michigan's affirmative action policy for undergraduate admissions.

The conflicts in rulings and differences in legal reasoning are widely expected to send the issue of race- based admission policy back to the United States Supreme Court for the first time since 1978.

Although the University of Georgia is likely to appeal the decision, possibly up to the Supreme Court, the force of the ruling is a severe blow to a policy strongly supported by a succession of state and university leaders.

Having admitted no black students for its first 160 years, the University of Georgia has been more tenacious than most of its peers in maintaining its system of assigning bonus points to nonwhite students to increase their chances of admission.

In a statement issued this afternoon, the university's president, Michael F. Adams, gave no indication that he was ready to change that policy, although he did not specifically say what his next step would be. The university could appeal to the full 11th Circuit of 12 judges, and then to the Supreme Court.

"Sometimes you are defined by the battles in which you engage rather than by those you win," Mr. Adams said. "We are clearly disappointed in the court's decision. We certainly respect the court, but may have a differing opinion about whether the university's admissions program is narrowly tailored. I would hesitate to say anything further until we have had in-depth consultation with legal counsel, the chancellor and the governor's office."

Lee Parks, the Atlanta lawyer who represents the three white women who became plaintiffs in the case after being rejected for admission in 1999, said he considered the opinion the definitive legal statement striking down the notion that diversity is related to race.

"What the court said is that diversity isn't about race, it's about the individual backgrounds of students," said Mr. Parks, who has long been active in working against racial preference systems. "For so long, the civil rights groups have tried to create a linkage between race and diversity, but now we can see that it's really nothing more than a racial quota system."

In the opinion, written by Judge Stanley Marcus, the court said that if the university wanted to create a community where students were exposed to different backgrounds and experiences, there were times when a white student might contribute more than one who was nonwhite. A white applicant from rural Appalachia may contribute more to the student body than a nonwhite applicant from suburban Atlanta, the judges said.

Judge Marcus, appointed to the court in 1997 by President Bill Clinton, was joined in the opinion by Judges Stanley F. Birch, appointed in 1990 by President George Bush, and Harlington Wood Jr., a visiting judge from the United States Court of Appeals for the Seventh Circuit who was appointed in 1976 by President Gerald R. Ford.

Race can be considered as a factor in encouraging diversity, but it cannot be assumed that every nonwhite student will automatically contribute more to a diverse campus than white students, the opinion said.

Therefore, the university's system of adding points to the admissions score of every nonwhite applicant violates the equal protection clause of the 14th Amendment, the opinion said, because the university is required by previous Supreme Court decisions to show that race-based systems must achieve a clear public purpose.

The admissions policy, which is now on hold, applied to about 10 percent of the freshman students who were admitted on a basis other than grades and test scores. Despite the university's efforts, black students were never attracted to its main campus at Athens, where they constitute less than 6 percent of the student body in a state that is almost a third black.

In its landmark 1978 decision in the University of California Regents v. Bakke, the swing vote on the court, Justice Lewis F. Powell Jr. wrote that diversity could be a legitimate goal of a university's admissions policy. Today's ruling was unusual in stating that Justice Powell's opinion was not necessarily binding. But even assuming that diversity is a compelling goal, the court wrote, it still does not necessarily justify a rigid racial preference policy.

If the university "wants to ensure diversity through its admissions decisions, and wants race to be part of that calculus," the judges wrote, "then it must be prepared to shoulder the burden of fully and fairly analyzing applicants as individuals and not merely as members of groups when deciding their likely contribution to student body diversity."

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