Johnson v. Board of Regents of University System

• Decision Date: 24 July 2000
• Docket Number: No. 499CV169.,No. 499CV181.,499CV169.,499CV181.
• Citation: 106 F.Supp.2d 1362
• Parties: Jennifer L. JOHNSON, Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA d/b/a University of Georgia, Defendant, and Antoine Hester, et al., Defendant-Intervenors. Aimee Bogrow and Molly Ann Beckenhauer, Plaintiffs, v. Board of Regents of the University System of Georgia d/b/a University of Georgia, Defendant, and Antoine Hester, et al., Defendant-Intervenors.
• Court: U.S. District Court — Southern District of Georgia

106 F.Supp.2d 1362

Jennifer L. JOHNSON, Plaintiff, v. BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA d/b/a University of Georgia, Defendant, and Antoine Hester, et al., Defendant-Intervenors.

Aimee Bogrow and Molly Ann Beckenhauer, Plaintiffs, v. Board of Regents of the University System of Georgia d/b/a University of Georgia, Defendant, and Antoine Hester, et al., Defendant-Intervenors.

No. 499CV169.

No. 499CV181.

United States District Court, S.D. Georgia, Savannah Division.

July 24, 2000.

COPYRIGHT MATERIAL OMITTED

John M. Tatum, Hunter, Maclean, Exley & Dunn, Savannah, GA, A. Lee Parks, R. Mason Barge, John W. Bellflower, Jr., Parks, Chesin & Miller, PC, Atlanta, GA, for Plaintiffs.

Dennis R. Dunn, Atlanta, GA, Alfred L. Evans, Jr., Senior Asst. Atty. Gen., Atlanta, GA, Mark H. Cohen, Michael D. Kaufman, Troutman Sanders LLP, Atlanta, GA, Rodney K. Strong, Griffin & Strong, Atlanta, GA, for Defendants.

Dennis D. Parker, Victor A. Bolden, Theodore M. Shaw, Elise C. Boddie, NAACP Legal Defense & Educational Fund, Inc., New York City, Ivory Kenneth Dious, Kenneth Dious & Assoc., Athens, GA, for Defendant-Intervenors.

ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

Plaintiffs brought these consolidated¹ actions to challenge the legality of the University of Georgia's (UGA's) 1999 admissions process, specifically the parts that rely upon an applicant's race and gender. Doc. # 1. A group of high school and UGA students intervened. Doc. # 75. The Court dismissed some claims and defendants on procedural grounds. See doc. # # 55, 99, 114, 160. The individual plaintiffs assert that defendant UGA's 1999 freshman admissions program violated 42 U.S.C. § 2000d (Title VI), and 20 U.S.C. § 1681 (Title IX). Doc. # 160. They seek money damages and an injunction ordering their admission. Doc. # 130 at 2.

The plaintiffs, UGA, and the intervenors now each move separately for summary judgment.² Doc. ## 130, 121, 117. In that the plaintiffs lack standing to seek forward-looking relief, see doc. # 99 at 5-8, the Court here addresses only the legality of UGA's 1999 freshman admissions program.

II. BACKGROUND

UGA subjected its 1999 freshman-class candidates to a three-layer evaluation process: Academic Index (AI), Total Student Index (TSI), and Edge Reading (ER). Doc. # 8 ¶ 7; doc. # 20 ¶ 7. It calculated AIs by using each applicant's high school academic GPA and standardized test (SAT or ACT) scores. Doc. # 8 ¶ 8. For 1999, UGA automatically admitted applicants having a minimum 2.86 AI (or 2.81 if derived from a "most difficult" high school curriculum), as well as a specified minimum SAT score. Doc. # 20 ¶ 9; doc. # 38 ¶ 30.

UGA next used the TSI to re-rank those applicants not automatically admitted but with AIs above 2.40. Using each applicant's AI as a starting point, UGA then re-ranked them by adding to that score various "plus factors" or "points" for certain characteristics. These included being nonwhite and male. Doc. # 8 ¶¶ 9-10; doc. # 20 ¶¶ 9-10. Non-whites received .5 TSI points and males received .25 TSI points (hence, a non-white male received .75). Doc. # 20 ¶¶ 11-12. UGA then denied admission to students with TSIs below 4.66 and admitted those with TSIs above 4.92. Doc. # 8 ¶ 15; doc. # 20 ¶ 16.

Finally, the university subjected 4.66-4.92 TSI applicants to the ER process, where "readers" scrutinize those at the "edge" of the admissions pool for "qualities that might not have been apparent at the AI and TSI stages...." Tracy v. Bd. of Regents, 59 F.Supp.2d 1314, 1317 (S.D.Ga. 1999); doc. # 1 ¶ 23; doc. # 38 ¶¶ 18-19.

Plaintiff Jennifer L. Johnson achieved a 4.10 TSI. Since she is a white female, UGA did not grant her the .5 racial or .25 gender points accorded to minority male applicants. Doc. # 8 ¶ 14. Because her TSI was below 4.66, it denied her admission outright (i.e., without ER-phase review). Doc. # 20 ¶ 17. Had UGA granted her the .75 "bonus points," her resulting 4.85 TSI would have qualified her for ER consideration. Three days after Johnson brought this action, UGA admitted her. Id.; doc. # 1.

Plaintiffs Aimee Bogrow and Molly Ann Beckenhauer achieved 4.52 and 4.06 TSIs respectively. Doc. # 38 ¶¶ 38, 42. As with Johnson, UGA awarded neither the .75 race/gender bonus points. Id. ¶ 43. Had it done so, Bogrow would have been admitted, and Beckenhauer would have qualified for ER consideration. However, without the bonus points, they did not make the 4.66 TSI cut-off, so UGA denied them admission. Id. ¶¶ 38, 42-43.

III. ANALYSIS

A. Governing Standards

1. Title VI Claim

The plaintiffs contend that UGA's use of a racial preference in the TSI phase of its admissions process violates § 601 of Title VI.³ Section 601 states that "[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance." 42 U.S.C. § 2000d. A claim arising under this statute, "just like a claim arising under the Equal Protection Clause of the Fourteenth Amendment ... must establish the funding recipient's discriminatory intent." Sandoval v. Hagan, 197 F.3d 484, 501 (11th Cir.1999).

Moreover, "Title VI's definition of racial discrimination is absolutely coextensive with the Constitution's." Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 352, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (opinion of Brennan, White, Marshall, and Blackmun, JJ.); see also Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 610-11, 103 S.Ct. 3221, 77 L.Ed.2d 866 (1983) (Powell, J., concurring) (noting that this view held a majority in Bakke). Therefore, a Title VI statutory claim is analyzed identically to an equal protection claim. Elston v. Talladega County Bd. of Educ., 997 F.2d 1394, 1405-06 n. 11 (11th Cir. 1993) ("Since Title VI itself provides no more protection than the equal protection clause — both provisions bar only intentional discrimination — we will not engage in a separate discussion of the Title VI statutory claims, as such an inquiry would duplicate exactly our equal protection analysis").

Accordingly, since the parties do not dispute that UGA receives federal funds, or that its admissions policy considers applicants' race, the plaintiffs will prevail on their Title VI claim unless UGA demonstrates that its use of racial bonus points can survive strict scrutiny. That is, it "must serve a compelling governmental interest, and must be narrowly tailored to further that interest." Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 235, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). The Court addresses UGA's showing on this in Part III(B) infra.

2. Title IX Claim

The plaintiffs' remaining claim, challenging UGA's gender preference, arises under Title IX.⁴ This law provides in part that "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance...." 20 U.S.C. § 1681(a).

The plaintiffs and defendant agree that the standard for a Title IX violation is the same as that used for equal protection claims. See doc. # 122 at 46-47; doc. # 151 at 24. This result follows from the similarity between Title VI and Title IX. As the Supreme Court has stated:

Title IX was patterned after Title VI of the Civil Rights Act of 1964. Except for the substitution of the word "sex" in Title IX to replace the words "race, color, or national origin" in Title VI, the two statutes use identical language to describe the benefited class.... The drafters of Title IX explicitly assumed that it would be interpreted and applied as Title VI had been....

Cannon v. Univ. of Chicago, 441 U.S. 677, 694-96, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979) (footnotes omitted).

Thus, "it is settled that analysis of the two statutes is substantially the same." Franklin v. Gwinnett County Pub. Schs., 911 F.2d 617, 619 (11th Cir.1990), rev'd on other grounds, 503 U.S. 60, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). And since, as stated above, Title VI's discrimination prohibition is coextensive with the Equal Protection Clause's, it follows that Title IX's is also.

Some uncertainty arises, however, from the fact that the Equal Protection Clause has been interpreted to treat racial and sexual classifications differently. See Jeldness v. Pearce, 30 F.3d 1220, 1227 n. 4 (9th Cir.1994) (noting that a gender-based classification is upheld if the government can show that it is substantially related to an important governmental interest, but that racial distinctions must be narrowly tailored to achieve a compelling governmental interest). But, "[b]ecause Title IX and Title VI use the same language, they should ... be read to require the same levels of protection and equality." Id. at 1227; Klinger v. Department of Corrections, 107 F.3d 609, 614 (8th Cir.1997).

Therefore, the standard for finding gender discrimination under Title IX is the same as Title VI's standard for racial discrimination, which is identical to the Equal Protection Clause's standard for racial classifications — i.e., strict scrutiny. To defeat plaintiffs' Title VI and IX claims, then, UGA's asserted interest in "the promotion of diversity in higher education" (see doc. # 122 at 25) must be compelling, and its use of race and gender as two of several "plus factors" must be narrowly tailored to achieve that interest.

B. Using Racial Preferences to Promote "Diversity"

1. The Bakke Case

Relying upon Justice Powell's opinion in Bakke, UGA contends that the promotion of diversity in higher education is a State interest sufficiently compelling to justify race-conscious admissions. Doc. # 122 at 25. In Bakke, the Supreme Court invalidated the University of California at Davis's (UCD's) medical school admissions policy, which reserved a certain number of seats in...