Judicial Notebook

The Equal Protection Clause of the 14th Amendment to the Constitution prohibits states from using race classification as a selection factor in student admissions unless the state can pass the most exacting judicial examination, Miller v. Johnson, 515 U.S. 900 (1995). An affirmative-action plan that favors minority applicants over non-minorities for positions in a state institution 1) must demonstrate a compelling state interest for using race as a selection factor and 2) show that the selection process is narrowly tailored to further only that specific state interest, Adarand Constructors, Inc. v. Pena, 515 U.S. 200, (1995).

Recently, the 11th Circuit Court of Appeals reluctantly accepted diversity of the student body as a compelling state interest in Johnson v. Board of Regents of University of Georgia, 2001 WL 967756 C.A.11 (Ga.), (2001). However, the court expanded the definition of diversity beyond ethnic and racial dimensions when it decided that the plan did not satisfy the second requirement of being narrowly tailored for the interest of diversity.

A new case

In Johnson, the 11th Circuit borrowed a Fourth Circuit test used in a school affirmative-action case in which the state's compelling interest was to remediate past discrimination, Tuttle v. Arlington County Sch. Bd., 195 F.3d 698, 705 (4th Cir.1999). The 11th Circuit modified the test requiring state schools using diversity of the student body as a state interest to justify their affirmative-action plans by showing their admission policies do not:

  • Use race rigidly to discount "different contributions to diversity that individual candidates may offer."

  • Overlook "race-neutral factors which may contribute to a diverse student body."

  • Give an arbitrary benefit to members of the favored racial groups.

  • Fail to consider "race-neutral alternatives for creating student body diversity."

The University of Georgia admissions scheme consisted of a three-stage process in which the school first automatically accepted all students who scored above a cutoff point on an academic index score and on the Scholastic Aptitude Test. The school rejected those whose scores fell below a minimal standard cutoff on these indices. Second, the admissions officers calculated a Total Student Index (TSI) score, which includes racial classification among a combination of weighted academic, extracurricular, and demographic factors. The school automatically accepted students who scored above a high-end cutoff and rejected those who scored below a low-end minimal standard on the TSI. At the third stage, university staff reviewed the applications of students who fell between the two TSI cutoffs, looking for qualities that they missed in the first two stages to use to discriminate between students to accept and reject. When evaluating the TSI score, the admission workers automatically assigned .5 points (18 percent of the points available for nonacademic qualities) to students who identified themselves as "Non-Caucasian."

The 11th Circuit found that this manner of assigning points was too rigid, in part, because it automatically bestowed a benefit upon some applicants due to their race. These points were enough to disadvantage plaintiffs Johnson, Bograow and Beckenhauer in the admissions process. Further, the university failed to consider alternative non-racial schemes (i.e., selecting the top percent of graduating seniors from all high schools in the state) that might promote a diverse student body without resorting to racial classifications. The court concluded that the plan did not allow the admission officers to examine "fully and fairly" "individuals for their potential contributions beyond race to diversity." Other diversity factors that the court recommended included economic disadvantage, extensive travel abroad, remote or rural residence, ability to speak foreign languages, unique communication skills (e.g., use of braille) and ability to overcome personal adversity.

Implications for psychology

At least in the 11th Circuit affirmative action plans that use race as an admissions requirement will need to define diversity beyond race and use a system that assigns a meaningful weight to extra race factors. Social and industrial/organizational psychologists can be of assistance to the courts and schools by studying the social meaning of diversity in schools and by developing selection schemes that maximize diversity of a student body along lines that include, but also go beyond, racial factors. The outcome of this research effort has the promise of influencing an equal protection law jurisprudence in accordance to the values of scientific psychology.