A Constitutional Chaos and A Call for Help: The Chiaroscuro Backdrop of Johnson v. Board of Regents of the University of Georgia

• Author: Susannah Gayle Orman
• Pages: 127-156

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The author extends special thanks to Professor Kenneth Murchison for his guidance and wisdom in advising this note.

"Race is the perpetual American dilemma."¹²³

Introduction

The United States Supreme Court uses strict scrutiny to review a claim that a classification violates a plaintiff's rights under the Equal Protection Clause⁴ of the Fourteenth Amendment if the classification is suspect. Under strict scrutiny, the objective sought by the government must be compelling and the means chosen by the government must be narrowly tailored to achieve that compelling objective. In other words, suspect classifications withstand constitutional muster when they are necessary to fulfill a compelling governmental objective.

It was not until 1944 in Korematsu v. United States⁵ that race was specifically recognized as a suspect class so as to subject any racial classifications to strict scrutiny. In an opinion by Justice Black, the Court stated that "all legal restrictions which curtail the civil rights of a single racial group are immediately suspect . . . [and] courts must subject them to the most rigid scrutiny."⁶ Therefore, race is a suspect class and any classification based on race must be necessary, or narrowly tailored, to further a compelling governmental objective.

The history of race in the context of education took an important step in 1954 in Brown v. Board of Education of Topeka.⁷ In Brown, the Court expressed that the idea of "separate but equal" was inherently unequal, and therefore, any law based on the "separate but equal" doctrine violated the Equal Protection Clause of the Page 128 Fourteenth Amendment.⁸ However, the Brown decision did not end the use of racial classifications in education. Claims of racial discrimination continue to plague courts, as the Eleventh Circuit discovered in Johnson v. Board of Regents of the University of Georgia.⁹

In August 1999, Plaintiffs Jennifer Johnson, Aimee Bogrow, and Molly Ann Beckenhauer challenged the University of Georgia's ("UGA") freshman admissions policy alleging that it discriminated against them based on race. Specifically, the plaintiffs claimed the policy violated the Equal Protection Clause¹⁰ of the Fourteenth Amendment. The district court found for the plaintiffs and the Eleventh Circuit affirmed. The court held that UGA's admissions policy failed strict scrutiny and violated the Equal Protection Clause of the Fourteenth Amendment.¹¹ However, the Johnson court did not decide what it called the "initial question:" Is student body diversity a compelling governmental interest that satisfies strict scrutiny review in constitutional analyses?¹² Although the end result in Johnson is correct, the court's refusal to address the issue of diversity as a compelling interest has only served to add to the chaos that has become affirmative action in the context of higher education.

This article will address three questions: (1) Is the diversity issue an open question, or in other words, is Bakke binding?; (2) If diversity has any place in university admissions policies, can race be a factor in diversity plans?; and (3) Should the Eleventh Circuit have resolved the diversity issue in Johnson? Part I of this article discusses the source of the problem, the controversial decision of Regents of the University of California v. Bakke.¹³ Part II sets out the facts and procedural background of Johnson and the Eleventh Circuit's holding. Part III addresses the current circuit split as to the proper interpretation of Bakke and further discusses whether diversity is a compelling interest. Part IV examines the current "assumption" trend that some courts are following and the resulting problems of this analysis. Part V examines race as an unacceptable discriminatory tool and further discusses the Johnson court's analysis of race as a factor in UGA's admissions decisions. Part VI focuses on the Johnson court's treatment of the diversity issue and further discusses whether the court should have made an attempt to resolve it. It will be shown that, although Johnson did not affirmatively provide an answer to the Page 129 diversity issue, the Eleventh Circuit followed constitutional tenet in its decision. While this article focuses on the Johnson court's analysis, it is meant to have much broader implications. The discussion and analysis shows how future courts are likely to resolve the diversity issue, or more accurately, not to resolve it at all.

I To Understand The Problem Is To Understand Its Foundation: Regents Of The University Of California V. Bakke

The question of whether diversity is a compelling interest that will satisfy strict scrutiny review is one that arises from the United States Supreme Court case of Regents of the University of California v. Bakke.¹⁴ The issue in Bakke was whether the Medical School of the University of California at Davis' admissions policy was unconstitutional because it reserved sixteen out of one hundred places for minority applicants.¹⁵ The California Supreme Court held that the university's admissions policy violated the Equal Protection Clause.¹⁶

In a five-to-four ruling, the United States Supreme Court found the policy refusing Bakke's admission into the medical school was invalid; however, it reversed the lower courts' decision enjoining the university from ever considering race as a factor in future admissions decisions.¹⁷ Specifically, Justices Powell, Stevens, Burger, Stewart, and Rehnquist affirmed the finding that the policy was invalid and ordered Bakke admitted. However, a different majority, made up of Justices Powell, Brennan, White, Marshall, and Blackmun, reversed the California Supreme Court's injunction of the university's consideration of race in the policy.¹⁸

Justice Powell supplied the deciding vote for both holdings of the Court. In his opinion, Justice Powell found the university's goal of obtaining diversity in its student body to be a compelling interest.¹⁹No other Justice joined in this part of Justice Powell's opinion. Justices Stevens, Burger, Stewart, and Rehnquist did not reach this issue and instead found the admissions policy invalid on other grounds.²⁰ Justices Brennan, White, Marshall, and Blackmun, while Page 130 agreeing that some uses of race in university admissions policies are permissible, did not decide whether diversity was a compelling state interest because they did not use the strict scrutiny standard of review.²¹ Specifically, this group of Justices determined that classifications based on race must be substantially related to achieving an important governmental objective.²² Therefore, the only Justice who found student body diversity to be a compelling interest was Justice Powell. This dispute continues today and is evident in Johnson.

II Johnson V. Board Of Regents Of The University Of Georgia

A Factual and Procedural Background

In 1969, the Office of Civil Rights (the "OCR") declared that "past patterns of racial segregation have not been eliminated from most of the institutions within" Georgia's university system.²³ The following year the OCR ordered the Board of Regents to implement affirmative action plans to alleviate this problem.²⁴ These affirmative action programs sought to increase the number of African-Americans enrolled in Georgia's educational institutions.²⁵ Progress was made. In 1989, the OCR found that Georgia's university system "had substantially complied with the prescribed remedial measures."²⁶Therefore, Georgia's system of public higher education complied with Title VI of the Civil Rights Act of 1964, and no additional desegregation measures were required by the OCR.²⁷

The claim against the University of Georgia's Board of Regents stemmed from the university's 1996 revised freshman class admissions policy. This policy divided the admissions process into three stages.²⁸ The three stages were: (1) the "First Notice" stage, (2) the "Total Student Index" or "TSI" stage, and (3) the "Edge Read" or "ER" stage.²⁹

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UGA selected the majority of its freshman class in the "First Notice" stage. Under the policy, UGA granted admission automatically to those prospective students whose SAT scores are at least 450 Verbal, 450 Math, and 1000 overall and whose academic indexes (AIs) are 2.86 or above.³⁰ The AI consisted of grade point average and quality of curriculum. The program then divided the remaining applications into two groups. The group of applicants with an AI of at least 2.40 and SAT scores of at least 950 overall, 430 on Verbal, and 400 on Math proceeded to the "TSI" stage.³¹ The University automatically rejected the group of applicants with scores that fall below the minimum AI or SAT requirements.³²

Under the "TSI" stage, the university expressly considered an...