Johnson v. Board of Regents of Univ. Georgia

• Decision Date: 27 August 2001
• Docket Number: Nos. 00-14340,s. 00-14340
• Citation: 263 F.3d 1234
• Parties: (11th Cir. 2001) JENNIFER L. JOHNSON, and all others similarly situated, AIMEE BOGROW, et al., Plaintiffs-Appellees- Cross-Appellants, v. BOARD OF REGENTS OF THE UNIVERSITY OF GEORGIA, d.b.a. University of Georgia, Defendant-Appellant- Cross-Appellee, ANTOINE HESTER, et al., Intervenors-Defendants, Appellants-Cross-Appellees. & 00-14382
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1234

263 F.3d 1234 (11th Cir. 2001)

JENNIFER L. JOHNSON, and all others similarly situated, AIMEE BOGROW, et al., Plaintiffs-Appellees- Cross-Appellants, v. BOARD OF REGENTS OF THE UNIVERSITY OF GEORGIA, d.b.a. University of Georgia, Defendant-Appellant- Cross-Appellee, ANTOINE HESTER, et al., Intervenors-Defendants, Appellants-Cross-Appellees.

Nos. 00-14340 & 00-14382

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

August 27, 2001

[Copyrighted Material Omitted] Appeals from the United States District Court for the Southern District of Georgia. D. C. Docket No. 99-00169-CV-4

Before BIRCH, MARCUS and WOOD^*, Circuit Judges.

MARCUS, Circuit Judge:

In this case, we consider a challenge to the University of Georgia's freshman admissions policy, and specifically that policy's preferential treatment of non-white applicants. The three Plaintiffs are white females who applied unsuccessfully for admission to the University's Fall 1999 class. Plaintiffs allege, and Defendants do not dispute, that the University's admissions policy awarded a fixed numerical bonus to non-white and male applicants that it did not give to white and female applicants. The district court found the policy unlawful and entered summary judgment in Plaintiffs' favor. The court declined, however, to enter a prospective injunction forbidding the University from ever considering race or gender in the freshman admissions process. On appeal, Defendants do not challenge the district court's ruling regarding the University's preferential treatment of males, but do appeal the ruling regarding the University's preferential treatment of non-whites. According to the Defendants, the University's freshman admissions policy does not unlawfully discriminate on the basis of race because the policy is narrowly tailored to serve a compelling interest in ensuring a diverse student body. Plaintiffs cross-appeal on several matters, including the denial of prospective injunctive relief.

After careful review of the record and the parties' arguments, we affirm the entirety of the district court's rulings, although we find the University's 1999 freshman admissions policy unconstitutional for a reason different than that adopted by the district court. The district court found the admissions policy unlawful because, in its view, student body diversity is not a compelling interest sufficient to withstand the strict scrutiny that courts must apply to government decision-making based on race. We need not, and do not, decide that issue, because even assuming that student body diversity is a compelling interest, the University's 1999 freshman admissions policy is not narrowly tailored to achieve this interest. A policy that mechanically awards an arbitrary "diversity" bonus to each and every non-white applicant at a decisive stage in the admissions process, and severely limits the range of other factors relevant to diversity that may be considered at that stage, fails strict scrutiny and violates the Equal Protection Clause of the Fourteenth Amendment.

I.

The three Plaintiffs filed this action in August 1999, challenging the policy employed by the University of Georgia ("UGA") to determine which applicants would be admitted to the freshman class entering in the Fall of 1999. Plaintiff Jennifer Johnson's complaint was filed separately, and eventually was consolidated with the complaint of Plaintiffs Aimee Bogrow and Molly Ann Beckenhauer.¹ All three Plaintiffs had recently been denied admission to UGA, and therefore were, at or about the time of filing their complaints, attending other colleges. Johnson was offered admission to UGA after filing this lawsuit, but she declined to enroll at that time.

Plaintiffs alleged that UGA's intentional use of race violated the Equal Protection Clause of the Fourteenth Amendment as well as 42 U.S.C. § 1981 and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; they alleged that UGA's use of gender violated Equal Protection and Title IX.² Named as Defendants were the Board of Regents of the University System of Georgia; Stephen Portch, Chancellor of the University of Georgia System; and Michael Adams, UGA's President. Plaintiffs sought a variety of remedies, including an injunction compelling their admission to UGA; prospective injunctive relief against the future use of race and gender in the freshman admissions process; certification of class for purposes of that relief; and damages. On December 15, 1999, various African-American individuals who either were students at UGA or who intended to apply as freshmen were permitted to intervene (the "Intervenors").

In November 1999, the district court preliminarily granted the Plaintiffs' motion to certify a class seeking to enjoin the use of race or gender in the freshman admissions process. The class consisted of "all those similarly situated past, present, and future applicants to UGA's freshman class denied admission or consideration for admission because of their race and/or gender." The district court's certification order was entered before the Defendants were even given the opportunity to oppose the certification requests of Plaintiffs Bogrow and Beckenhauer. The district court also ruled that the damages claims against Portch and Adams in their individual capacities were barred by qualified immunity.

Both parties then moved for partial reconsideration. On February 9, 2000, the district court reaffirmed its qualified immunity decision, but vacated the class certification order, on the ground that the Plaintiffs lacked standing to obtain prospective injunctive relief and hence could not represent a class seeking that relief. In light of that ruling, the court also dismissed Plaintiffs' individual claims for prospective injunctive relief.

In February 2000, with discovery underway and the parties proceeding toward summary judgment motions, the Intervenors moved for a "special case management scheduling order" or alternatively a three month extension of discovery. The district court denied the motion, which was opposed by the Plaintiffs and UGA primarily on the ground that the Intervenors' proposed changes to the pre-trial schedule would unduly complicate and delay resolution of the case. Summary judgment motions were then filed by the Plaintiffs, Defendants, and Intervenors. On June 16, 2000, the district court dismissed the claims against the individual Defendants in their official capacities, leaving the Board of Regents as the only Defendant.

On July 24, 2000, the district court entered its summary judgment order, denying the motions of the Defendants and the Intervenors and granting in part the Plaintiffs' motion. 106 F. Supp. 2d 1362 (S.D. Ga. 2000). In pertinent part, the district court found that UGA's consideration of race in its 1999 freshman admissions policy violated Title VI, which the court analyzed as identical to Equal Protection in this context.³ The district court first reasoned that Justice Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265, 98 S. Ct. 2733 (1978), was not binding precedent, and hence the court was not required to assume that the desire to foster student body diversity -- the only interest asserted by UGA -- was a compelling interest. The district court then reasoned that the Supreme Court's post-Bakke decisions have demonstrated a hostility to identifying diversity as a compelling interest.

The district court next explained why, in its view, UGA's asserted interest in diversity was too "amorphous" to support racial discrimination. According to the court, "[t]he record shows that UGA is plying a 'diversity = proportionalism' rationale," 106 F. Supp. 2d at 1371, presumably meaning that UGA's real interest was not diversity, but rather obtaining a percentage of non-white students equivalent to the representation of these non-white groups in the population at large. In addition, the district court discounted the benefits of diversity attested to by former UGA President Charles Knapp, describing Knapp's testimony as "syllogism and speculation." Id. at 1372. Because the district court did not actually cite any evidence contradicting Knapp's testimony on the perceived benefits of student body diversity, the district court's order may fairly be read as rejecting diversity as a compelling interest in all cases of this kind.

Having found that student body diversity is not a compelling interest, the district court did not reach the question of whether UGA's 1999 freshman admissions policy is narrowly tailored to achieve that interest, other than to opine that UGA's asserted diversity interest is "so inherently formless and malleable that no plan can be narrowly tailored to fit it." Id. at 1374 (emphasis in original). With respect to remedies, the district court rejected the Intervenors' argument that the three Plaintiffs would have been denied admission even if race and gender were not factors. The court then considered damages, and eventually awarded $7,184.93 to Beckenhauer, $2,060.18 to Johnson, and $1 to Bogrow. The court also directed "UGA, together with its officers, agents, and employees, to offer Aimee Bogrow and Molly Ann Beckenhauer admission for the Fall 2000 semester, and to keep its admission offer to Jennifer L. Johnson open for the Fall 2000 semester." Id. at 1381. It appears that Bogrow is currently attending UGA, and Johnson expects to do so this Fall.

II.

The relevant facts are largely undisputed. UGA is the flagship institution of Georgia's university system. For the first 160 years of its existence, no African-American student was admitted to UGA. The first African-American students were admitted in 1961. In 1969, the federal government, through the Office of Civil Rights ("OCR"), determined that Georgia's university system was still "operating a dual track of higher education based on race in that past patterns of racial segregation have not been eliminated from most...