Tracy v. Board of Regents of Univ. Sys. of Georgia

• Decision Date: 06 July 1999
• Docket Number: No. CV 497-45.,CV 497-45.
• Citation: 59 F.Supp.2d 1314
• Parties: Kirby TRACY and Craig Green, Plaintiffs, v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA and Dr. Stephen R. Portch, in his individual and official capacities, Defendants, and Georgia State Conference NAACP, et al., Intervenor Defendants.
• Court: U.S. District Court — Southern District of Georgia

59 F.Supp.2d 1314

Kirby TRACY and Craig Green, Plaintiffs, v. BOARD OF REGENTS OF the UNIVERSITY SYSTEM OF GEORGIA and Dr. Stephen R. Portch, in his individual and official capacities, Defendants and Georgia State Conference NAACP, et al., Intervenor Defendants.

No. CV 497-45.

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

July 6, 1999.

A Lee Parks, Kirwan, Parks, Chesin & Miller, Atlanta, GA, K. Lee Adams, Parks, Chesin & Miller, PC, Atlanta, GA, Matthew C. Billips, Zimring, Smith, Billips, Atlanta, GA, for Michael C. Wooden, Terry Bratcher, Elizabeth Scarbrough, Thelma F. Richardson, Marie McConnell, Ruth Harris, Kirby Tracy, Tom Jarvis, Ashley Davis.

Dennis R. Dunn, Atlanta, GA, Alfred L. Evans, Jr., Sr. Asst. Atty. Gen., Atlanta, GA, for Board of Regents of the University System of Georgia, Stephen R. Portch.

John Mell Clark, Elberton, GA, Howard Eugene Alls, Howard E. Alls & Associates, P.C., Savannah, GA, E. Ronald Garnett, Augusta, GA, Dennis D. Parker, David T. Goldberg, Victor A. Bolden, Theodore M. Shaw, NAACP Legal Defense & Educational Fund, Inc., New York, NY, Ivory Kenneth Dious, Kenneth Dious & Assoc., Athens, GA, for Georgia State Conference NAACP, Southern Christian Leadership Conference, Neshanta Johnson, Adante Kwakye, Natalie Plowden.

ORDER

EDENFIELD, District Judge.

I. INTRODUCTION

Invoking 42 U.S.C. §§ 1981, 1983 and 2000d ("Title VI"), plaintiffs Craig Green and Kirby Tracy challenge the University of Georgia's (UGA's) "affirmative action" admission policies. They contend that the Board of Regents of the University System of Georgia and Chancellor Stephen R. Portch (the Board) discriminated against them on the basis of their race (white) when they applied for admission to UGA's freshman class.

Prior orders detail the procedural history of this case. See Wooden v. Board of Regents, 32 F.Supp.2d 1370, 1372-75 (S.D.Ga.1999) ("Wooden"); doc. # 241. Here the Court will address the parties' cross-motions for summary judgment concerning Green. Doc. ## 192, 196, 201.

II. BACKGROUND

Previously, this Court found UGA's 1990-1995 admission policy unconstitutional as applied to plaintiff Kirby Tracy, in that its blatant "race-counting" preference feature denied him his equal protection rights. See Wooden, 32 F.Supp.2d at 1378-84. UGA significantly changed that policy in 1996 — before the instant case was filed — in light of concern over its constitutionality. Doc. # 86 ¶ 12 (Admission policy used from 1990-95 eliminated "because of growing concern of University of Georgia admission officials, in light of new Supreme Court decisions, about the constitutionality of its race-based, `dual-track' admissions policy").

Green unsuccessfully sought admission to the Fall 1997 UGA freshman class. At that time UGA screened applicants at three levels: (1) Academic Index (AI); (2) Total Student Index (TSI); and (3) the "edge read" (ER). At the AI level, UGA applied objective academic criteria without regard to race or ethnicity and admitted approximately 88% of its 1997 freshman class. 12/10/98 Albright dep., exh. 11.

The AI's objective academic criteria consisted of a GPA-SAT (Grade Point Average — Scholastic Aptitude Test) score combination, which generates a numerical statistic known as the Academic Index. That statistic purports to predict an applicant's freshman year GPA. Id. at 13-14. At this initial AI stage, UGA automatically admitted applicants who met minimum SAT requirements and held an AI score above a set number. For the 1997 freshman class UGA set that number at 2.5, id., exh. 11, while automatically eliminating from consideration those who fell below 2.25. Id., exh. 11.

That left a group of students whose AIs fell between 2.25 and 2.5 to proceed to the TSI phase of consideration. For these students UGA calculated a Total Student Index (TSI) score by adding "bonus" points to their AIs (thus, the AI score plus bonus points = TSI score). Id., exh. 10, 11. Those bonus points were based upon the following factors:

(a) academic (high SAT score, high GPA, difficult high school curriculum); (b) demographic (self-identified ethnic/racial status, Georgia residency, male gender, parents' education level, alumni relatives); and

(c) extracurriculars (hours spent in extracurricular activities, summer work hours, school year work hours).

Id., exh. 10; see also Wooden, 32 F.Supp.2d at 1375.

Each of these factors could add from .1 to .5 points. But UGA credited applicants who self-classified their race/ethnicity as non-caucasian (i.e., black, hispanic, native American, or asian) with .5 TSI points, while caucasian (white) applicants received none.¹ Doc. # 194 ¶ 13. For 1997, then, a non-white applicant could register up to an 8.46 TSI, while whites were capped at 7.96. 12/10/98 Albright dep., exh. 10.

After sorting applicants under the TSI process, UGA offered admission to all with a TSI score of 4.40 or higher. 12/10/98 Albright dep., exh. 6 at 7. Those below a 3.79 TSI score were eliminated outright. Id. Those scoring between 3.79 and 4.39 proceeded on to the final "edge read" (ER) stage of admissions. Id. However, the .5 point boost accorded non-whites meant that whites needed at least a 4.40 TSI score to be automatically admitted at this phase, while non-whites — solely because of the color of their skin — needed only a 3.90. Similarly, to avoid rejection at the TSI phase and proceed on to the ER phase, a white applicant needed at least 3.79 TSI points, while a non-white — because of the .5 racial/ethnic point boost — needed only 3.29.

At the ER stage, students with TSI scores between 3.79 and 4.39 had their application files individually read by at least two members of UGA's admissions office. Id. Here UGA discontinued its process of incrementally adding to a previous score, as it did when an applicant passed from the AI to the TSI phase. Instead, at the ER stage, all applicants started at zero. Edge readers then looked for qualities that might not have been apparent at the AI and TSI stages and scored all applicants on a -2.0 to +2.0 scale. Id. at 7-8. UGA then offered admission to all applicants with ER scores above a -.50, and denied it to those below that. 12/18/98 Albright dep. at 5.

Plaintiff Green's UGA application included a high school GPA of 3.3 and an SAT equivalency score (based upon his American College Testing (ACT) score of 27) of 1170-1190, resulting in an AI of 2.39. Doc. # 194 ¶¶ 8, 9. His AI score thus fell within the middle ground between automatic admission (AIs above 2.5) and automatic denial (AIs below 2.25). Id.

That sent Green's application to the TSI phase. UGA added 1.5 points for his parents' educational level, his Georgia residency, high GPA/SAT equivalency score and male gender, raising his TSI score to 3.89. Id. ¶ 11. Had he identified himself as non-white, however, his TSI score would have been 4.39. Id. ¶ 13.

Since Green's TSI score was below 4.40 (regardless of his race), his application proceeded to the ER stage. There two admissions counselors, acting as "edge readers," reviewed his application; both gave him a -2.0, the lowest possible score. 12/10/98 Albright dep., exh. 6 at 8. Because his score was below the -.50 cutoff, UGA denied Green's application. 12/18/98 Albright dep. at 5.

Green ultimately attended Dalton College that Fall, Green dep. at 15, but in 1998 he sought to transfer into UGA. Id. at 19. UGA denied his application because he lacked the necessary credit hours to transfer to UGA from a junior college. Id. at 20. Undaunted, Green intends to reapply as a transfer student once he earns the requisite credit hours. Id. at 16. The 1997 admissions process described above remains intact today. 12/10/98 Albright dep., exh. 8.

III. ANALYSIS

A. Cross-Motions for Summary Judgment on Green's Claims

As they have with every other plaintiff in this matter, the Board and the NAACP (for convenience, "the defendants") challenge Green's standing to bring this suit. As stated in Wooden, a plaintiff

establishes standing by showing, first, that he has "suffered an `injury in fact' — an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (internal quotations and citations omitted). He must also demonstrate a "causal connection between the injury and the conduct complained of — the injury has to be fairly traceable to the challenged action of the defendant." Id. Finally, "it must be likely, as opposed to merely speculative that the injury will be redressed by a favorable decision."

32 F.Supp.2d at 1375 (emphasis added). That means that individuals with merely "a generalized grievance against allegedly illegal government conduct" lack standing to sue in federal court. U.S. v. Hays, 515 U.S. 737, 743, 115 S.Ct. 2431, 132 L.Ed.2d 635 (1995). Thus, in the equal protection context, standing exists only for "those persons who are personally denied equal treatment by the challenged discriminatory conduct." Allen v. Wright, 468 U.S. 737, 755, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) (internal quotations and citations omitted); accord Wilson v. Glenwood Intermountain Properties, Inc., 98 F.3d 590, 593 (10th Cir.1996) ("a person who fails to satisfy lawful, nondiscriminatory requirements or qualifications for the benefit lacks standing to raise claims of discrimination in the denial of the benefit").

Id.

Here the parties focus on whether Green suffered an "injury-in-fact." While they agree that UGA took the ethnic/racial status of applicants into account through its TSI computation, they disagree on whether that amounted to a constitutionally sufficient injury in Green's case. Defendants insist that, because Green's race was not a factor in the ultimate decision to deny his application, he lacks standing to challenge UGA's admission policy. Doc. # 203 at 30;...