Another Legal Assault on Pluralism

By Sarah Torian

Vol. 20, No. 1, 1998 pp. 16-19, 34

"It is preposterous," says Harvard educator Gary Orfield of the Wooden case, a Georgia lawsuit filed in 1997. Challenging both the affirmative action programs at the state's predominantly white institutions and the legitimacy of its historically black universities, the case illustrates some of the ironies of anti-affirmative action arguments, as well as the complexity and difficulty of eliminating vestiges of segregation in higher education.

This case, says Dennis Parker, who represents the NAACP LDF and the SCLC in the suit, will determine the future of "fair access by African-American students to higher education." The suit alleges that the Board of Regents and Chancellor Stephen R. Portch failed to remove vestiges of de jure segregation from the University System of Georgia. The Chancellor and Board of Regents, who continue to endorse the use of limited affirmative action in the system, contend that they have removed all vestiges of the "once upon a time" de jure segregation. "This case is ahistorical," Orfield continues, "It assumes a different world than what actually exists."

Difficulties of Desegregation in Higher Education

represents a disturbing challenge to desegregation efforts that continues to confront all states, but especially those where segregation was formerly mandated by law; because of the individual's choice in whether and where to apply for higher education, the government and administrators have limited powers in bringing about integration in the university system. Unlike elementary and secondary school systems, compulsory attendance cannot be used to achieve integration in higher education.

In 1992, Ayers v. Fordice, the first significant desegregation case in higher education since Brown v. the Board of Education, reached the Supreme Court. Jake Ayers, Sr., charged that Mississippi discriminated in its educational policies by offering a dual educational system for whites and blacks, with the schools for blacks receiving inferior resources and facilities.

In Fordice, the Supreme Court ruled that the state must do more than adopt race-neutral policies and identified four areas in which Mississippi's policies appeared problematic: admissions policies, program duplication "mission" statements, and the number of public institutions. In a ruling that left neither party fully satisfied, the court decreased access by raising admission standards, increased funding and program offerings at historically black universities, and rejected the proposed mergers of predominantly white and predominantly black schools. It also raised the federal standards defining a successfully integrated university system.

Complaint Charges Schools "Racially Identifiable"

In February of 1997, Lee Parks, who earlier challenged Georgia's majority black congressional districts, filed Wooden on behalf of eleven plaintiffs, seven white and four black. The Wooden complaint models language used in the Fordice ruling, asserting that the University System of Georgia has maintained a dual system of education with "racially identifiable" schools, program duplication, and "mission" statements that mention race. It also appropriates the language of Hopwood, attacking the use of affirmative action to eliminate the dual system. This two-pronged attack on the University System, makes the Wooden case unique.

In language that seems to echo arguments in support of affirmative action, the Wooden complaint outlines a visceral attack on the affirmative action measures used by the University System. Rather than declaring that the barriers to equal access and opportunity maintained under segregation have been removed and that a "level playing field" has been achieved, the Wooden complaint argues that those barriers remain and are quite powerful in Georgia's system of public higher education. It charges that the policies of race-based admissions used by the state to remove the barriers were mere "tokenism."

Gary Orfield agrees that Georgia's affirmative action policies are "tokenism." That is, however, where their agreement ends. "[Affirmative action as practiced in Georgia] is too small and, for that reason, has not done its job. The state needs much more vigorous affirmative action, not an elimination of what is already there."

As examples of these vestiges of segregation, the complaint does not identify the University of Georgia, the state's flagship school, where, of the over 28,000 students enrolled at the beginning of the Fall 1997 quarter, less than 2,000 (6.8 percent) were black. It does not point to the Medical College of Georgia where, of its 1997 incoming class of 129 medical students, there were no African Americans. It, likewise, does not mention that of the three other major universities and research centers in a state


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whose population is 27 percent black, only one has a black student population that exceeds 10 percent.

The complaint, instead, identifies as proof of vestiges of segregation the three state universities whose student bodies are 88 to 94 percent black, Albany State University, Fort Valley State University, and Savannah State University. Because these institutions, originally founded to serve black students in a state that denied them access to the better-funded all-white institutions, continue to matriculate blacks in such large proportions, the Wooden complaint charges that they are "racially identifiable" and, therefore, represent a vestige of de jure segregation.

The fact that these "racially identifiable" schools accept large numbers of students into their developmental studies programs is blamed for "increasing racial segregation and perpetuating the reputation for and actual academic inferiority of the traditionally black institutions." These programs, which are not unique to the historically black institutions, offer college admission so that students who have not fulfilled all of the college preparatory requirements can do so and move on to regular college curriculum.

Plaintiffs "Remedies" Controversial

In July of 1997, Parks submitted to the court a list of fourteen suggested remedies to eliminate the vestiges of segregation. This list of fourteen steps includes several measures that education experts feel can only harm the Georgia University System and decrease black access to public education in the state. The first "remedy" on the list would remove race as a factor in all admissions decisions even though, as the plaintiffs admit, only the University of Georgia uses race in any way in its undergraduate admissions.

Director of Communications for the University of Georgia Tom Jackson defended the way in which UGA factored race into its admissions process saying, "Neither race nor any other single factor, except for academic record, can cause a student to be accepted or denied admission to the University of Georgia."

Admission officers selected 90 percent of the 1997 freshman class at UGA using only the Freshman Index, a mathematical formula that combines SAT scores and high school G.P.A. The remaining applicants were evaluated using a formula called the Total Student Index. This formula still bases 68 percent of its weight on the SAT and G.P.A. but also takes into account other factors. It gives "preference" to applicants from rural areas since 59 percent of in-state UGA undergraduates in the Fall of 1997 were from the Atlanta metropolitan area. It gives "preference" to applicants who are children or grandchildren of alumni, an indirect racial preference for whites. It gives "preference" to men since women make up the majority of UGA students. This list of criteria also, in equal measure, gives "preference" to black applicants since, though blacks make up 27 percent of the state's population and 18 percent of Georgia's public higher education applicant pool, they have never approached ten percent of UGA students. But, as Tom Jackson stressed, "Race is never, in and of itself, a determining factor in our admissions process."

Other remedies suggested by Parks include several measures that the University System instituted in a long range plan, conceived in 1996. For example, the state plans to transfer all developmental studies classes out of the state's four-year universities and into the two-year institutions by 2001. This would require that all students who did not complete the college preparatory curriculum in high school fulfill them at a two-year institution before being admitted to a four-year institution. The complaint argues that the large percentage of developmental studies students at the historically black institutions perpetuates their inferiority. The complaint omits, however, the fact that six of the nine majority-white senior colleges accepted a freshman class, in 1994, of which between 16 and 28 percent were in developmental studies programs.

Relocation of developmental studies is a move that many fear will diminish access to higher education for blacks. According to the Southern Education Foundation, 45 percent of blacks in Georgia's university system already are enrolled in two-year schools. Although two-year colleges are, in concept, access channels to four-year


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higher education, they frequently do not serve that purpose in practice.

three historically black universities have impressive retention rates. When students enroll at these schools, they frequently return the following autumn. Fort Valley State had the highest retention rate (75.2%) for regular admission freshmen among the eighteen senior colleges in 1994; Savannah State had the third highest (69.8%). All three historically black universities rank within the top six senior colleges in regards to retention rates of black students.

Another suggested remedy would merge historically black Savannah State University and Armstrong Atlantic University. The fact that the two schools, both located in Savannah, have not merged is, the complaint argues, "the starkest example of how the Board of Regents maintained rather than eradicated racially identifiable schools."

University System spokesperson Arlethia Perry-Johnson quickly dismisses the idea of merging these two schools, "That is not a point of consideration. It is not on the table at all. [The two schools] have their own purposes and missions which have been embraced by the board." Over the past twenty years, several studies have been conducted, examining the feasibility and effectiveness of merging these two institutions. They have all recommended that the two schools remain distinct. Savannah State focuses on technology and engineering and Armstrong Atlantic focuses on education, health and criminal justice.

Many education experts view this suggested remedy as a direct attempt to limit access for African-American students to four-year educations. In its evaluation of higher education desegregation in the southern states, the Southern Education Foundation wrote, "Without historically black colleges and universities, access for black students-already limited-would be drastically reduced." Georgia, with only 25 percent of its first-time, full-time black students at four-year institutions attending historically black universities, is much less segregated than other southern university systems. Two-thirds of the other twelve Southern states enroll at least 50 percent of their first-time, full-time black four-year students at historically black universities.

Agreeing with the importance of the historically black institutions and the irony of suggesting closing or merging these schools, Gary Orfield said, "The burden should not fall on the historically black schools to integrate. They have always been open. To close black schools would be asking black students to give up something that has worked very well without any assurances that anything would take its place."

State Says "Been There, Done That"

Georgia's Senior Assistant Attorney General Alfred L. Evans, Jr. has, in response to Parks' unique manner of stating his attack on affirmative action, laid out a similarly unique defense. He contends that all vestiges of the de jure segregation embraced by the state's system of higher education, keeping all black undergraduates out of the University of Georgia until 1961, have been removed. Acknowledging the "current institutional variations in racial, gender, religious affiliation, and national origin," the state argues that these variations "are the result solely of the decisions made by private individuals about going to college - whether, when, and where."

Though he is defending the practices being challenged by the plaintiffs, Evans does not agree with some of them. In response to the use of race by UGA admissions officials, Evans has said, "Preferences are unfair. It would be the same as saying that I want to admit someone who likes spaghetti which would unfairly exclude people who do not like spaghetti." When questioned as to preferences based on other criteria, he responds, "We have never taken the view that you can't have preferences for geography, for demographics." Evans does support affirmative action involving recruiting and similar measures.

In support of this argument, Evans describes Georgia's desegregation efforts under the guidance of the Department of Education's Office of Civil Rights between 1970 and 1989. Under the OCR's guidance, the University System made substantial changes in certain areas. It increased the average per student funding, provided more than fifteen million dollars for enhancement projects, established twenty-one new academic programs at the three historically black schools, and enacted recruitment efforts to attract minority students to the majority-white institutions and to encourage students at two-year institutions to transfer to senior institutions. It also implemented several programs to locate and attract qualified minority candidates.


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"There has been substantial investment of facilities at the historically black colleges and universities," says Robert Kronley, senior coordinator for the Southern Education Foundation, "but there is still a very long way to go to make up for the decades that the state did not invest equally in those schools."

In 1989, a positive OCR evaluation removed Georgia from federal supervision. According to the OCR's standards at that time, though a state was only required to comply with a federally-approved desegregation plan, not demonstrate actual changes in the racial makeup of the system or individual schools.

The state also cites several facts that, it argues, demonstrate that no "backsliding" has occurred since1989. Asserting that the alleged "racial identifiability" of black institutions was not responsible for the small number of minority students at the majority-white institutions, the defense correctly points out that over 80 percent of all black students enrolled in the University System were enrolled in majority white schools. Black enrollment increased 52 percent between 1990 and 1996 while white enrollment increased only 1 percent. In fall 1996, the 43,609 black students in the University System comprised 21.3 percent of the total 204,332 System students.

Although Robert Kronley applauds the efforts made by the University System, he stresses that, though the number of black students has increased substantially, proportionately the numbers have not increased. As a percentage of the overall University System of Georgia enrollment, black students have only increased about 6 percentage points during the six year period. Also, black representation has been falling over the past two years at the University of Georgia at Athens. Fall black enrollment dropped by 132 between 1995 and 1997.

The state's heavy reliance on the OCR evaluation in its defense is also questionable. Raymond Pierce, Deputy Assistant Secretary of the Office of Civil Rights explains that this positive evaluation was based on a different application of OCR's standards than are applied today. After the ruling, state University Systems were required not only to implement desegregation measures, but to demonstrate the effects of these measures as well as efforts. All states, including Georgia, that had earlier been released from supervision were warned that they could be returned to federal supervision if they were found to be harboring any vestiges of segregation. "Ayers did not destroy the earlier criteria," Pierce explains, " It affirmed them."

The University System of Georgia has continued to exert a great deal of effort to improve access to higher education. "Of the previously de jure segregated states in the South," Kronley says, "Georgia and Maryland are beginning to have the most comprehensive programs that work to link education from the elementary and secondary levels through college."

The P-16 program and the PREP program represent Georgia's efforts to build this comprehensive system. P-16, initiated in 1995, is a program designed to link the curricula of each level of the education system from preschool through bachelors degree, providing smooth transitions from one level to the next. The PREP Program, through academic enrichment programs and campus visits, helps students in at-risk situations get on the right track for admission into the state's University System.

These efforts are of increased importance as the University System moves to raise admission standards and remove developmental studies programs from its four-year institutions. "While we are raising the bar on one side, we are raising the level of support on the other," insists Arlethia-Perry Johnson, " This will provide a safety net so that access to education will not be diminished."

Kronley agrees. "Most states are moving now to consider higher admission standards and tougher high school graduation requirements. These are good, but only if they are phased in over time. For example, Mississippi instituted new admission standards and high school requirements in one year and the results were terrible. Georgia, on the other hand, is implementing the higher standards over a six to seven year period. That move is a good faith implementation."

HOPE scholarship is another example of Georgia's efforts to increase access to higher education. Funded by Georgia's Lottery for Education, the HOPE Scholarship is available to any Georgia resident who graduates from high school with a 3.0 G.P.A. and maintains that average while in a Georgia college. Although, as Gary Orfield notes, "The HOPE scholarship is financial aid distributed on a non-need basis. In effect, it compounds the inequality," it does provide a motivating incentive for student success both in secondary and post-secondary schooling.

Intervenors Seek to Protect Rights

Although the state's defense challenges the plaintiffs' attempts to remove all race-based admissions, many people in Georgia do not feel represented in light of the way the state is framing its defense. This dissatisfaction has culminated in a "motion to intervene" submitted by the NAACP, SCLC, and seventeen black high school, college, and graduate students. Intervenors felt that the remedies sought by the plaintiffs would effect a drastic reduction in


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educational opportunities for Georgia's black students at all its four-year institutions.

The intervenors also assert that the defendants are unable simultaneously to represent the interests of black students and interests of the state. To represent the students' interests in protecting equal access to higher education, the intervenors contend, the state would need to acknowledge that all vestiges of de jure segregation have not been removed. Such an admission, however, could result in the state being remanded to federal supervision which is not in the state's interests.

The case is still in its early stages. The discovery period, during which the parties will gather information to support their cases, will continue until May 31, 1998. At that point, Eleventh Circuit U.S. District Court Judge B. Avant Edenfield will rule on the defense's motions to dismiss and to challenge the legal "standing," an ability to demonstrate personal injury, of the remaining plaintiffs.

Says Dennis Parker, "I expect it should go to trial this year. It is a much more straightforward case than Ayers, so I don't expect it to last more than a few weeks."

Sarah Torian is an editorial assistant at SRC and recently received her masters degree in Southern Studies from the University of Mississippi.