ATLANTA - Federal appeals court judges questioned University of Georgia lawyers Tuesday about whether affirmative action policies at the school amounted to illegal discrimination against whites.
The university is seeking to overturn a federal judge's July ruling that the now-suspended policy, which awarded bonus points to some nonwhite applicants, was unconstitutional. The school's minority enrollment remains drastically lower than the state's minority population.
"It could be decisive between two different candidates, could it not?" Judge Stanley F. Birch Jr., part of a three-member panel of the 11th U.S. Circuit Court of Appeals, asked University System of Georgia attorney Mark Cohen. "All things being equal, a black candidate would be treated differently."
Mr. Cohen acknowledged as much, but said that a black candidate would lose out to an otherwise equally qualified white candidate with two of 12 factors the school considered - for example, a rural resident whose parents had attended the school.
The panel - which included Judge Birch, Judge Stanley Marcus and Judge Harlington Wood - will issue a ruling for the court. No timetable has been set for when the court could announce its decision.
In arguments that focused largely on the fine points of the law and prior federal admissions cases, Mr. Cohen told judges that about 85 percent of University of Georgia's freshmen are admitted purely on an academic basis. The other 15 percent are judged in part on the 12 additional factors.
In 1999, Mr. Cohen said, 45 minority candidates probably got into the university because their race was considered.
"Diversity in higher education is a compelling state interest," he said. "University of Georgia's admissions plan was narrowly tailored to meet that interest."
But Judge Birch suggested otherwise.
"There's been no demonstration on this record ... that you have crafted a program that is narrowly tailored to meet that goal, even if it is a permissible goal," Judge Birch said.
Atlanta attorney A. Lee Parks represents three white women who sued the university in 1999 after being denied admission. After Judge B. Avant Edenfield's ruling, two of the women were admitted to the school, while the third elected to remain enrolled at Clemson University.
Mr. Parks argued that his clients were discriminated against because of their race and gender.
"Were they thrown off the ship because there are some other people who had parents that went to the University of Georgia?" Mr. Parks said. "No. They were thrown off the ship because they were white and they were women."
He argued that the university abandoned efforts at truly seeking out student diversity - such as having applicants write essays about their lives - in favor of using a single box, indicating race, filled out on an application.
"You are assured to be culturally valuable to the university if your skin color is one we prefer," Mr. Parks said to characterize the school's stance.
Judge Birch, who asked the majority of questions during the 30-minute session, seemed unswayed by arguments from NAACP attorney Elise Boddie that her organization should be allowed to argue for the university's admissions policy.
The National Association for the Advancement of Colored People, which entered the case to objections from both Mr. Parks and the university, says the policy is needed to make up for the lingering effects of more than a century of segregation at the university.
Judge Birch said the argument seems foreign to the issues the university has used to appeal the case. He suggested that the NAACP either argue based on the same issues or file a suit of its own.
"You can't have your cake and eat it, too," Judge Birch said.
Reach Doug Gross at (404) 589-8424 or firstname.lastname@example.org.
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