by Phil Kent

University of Georgia President Michael Adams, the State Board of Regents, state Attorney General Thurbert Baker, and Gov. Roy Barnes this week finally decided to stop wasting taxpayers' money in defending UGA's race-based student admissions policy in an appeal to the U.S. Supreme Court. Even the NAACP Legal Defense Fund admitted "there is nothing to be gained by appealing" -- due in no small measure to the admission director's frank confession that bonus points for black applicants were created "out of the blue."

Federal Judge B. Avant Edenfield originally told Adams & Co. that UGA's "amorphous, unquantifiable" goal of diversity did not provide a compelling state interest for using racial preferences. Adams mocked that ruling and the governor backed his appeal. But this August, an 11th Circuit Court of Appeals panel unanimously upheld Edenfield in favor of three white female plaintiffs who were turned away from UGA (and subsequently admitted).

The panel also questioned whether the U.S. Supreme Court's 1978 Bakke ruling, which has guided many collegiate admissions policies, provided any meaningful justification for using race in admissions decisions.

Adams, who has been prattling about "diversity," received an interesting lecture from the three federal judges on what the real definition of that word means. "If the goal in creating a diverse student body is to develop a university community where students are exposed to persons of different cultures, outlooks and experiences, a white applicant in some circumstances may make a greater contribution than a non-white applicant," the judges underscored.

Interestingly, many college admissions directors had already been traveling down this proper, legal road. Stanford University's dean of admissions notes there are white students in his applicant pool each year who are categorized internally as "diversity students." They include "kids from rural backgrounds, kids from Appalachia and kids who are white and recent immigrants."

The main issue in school admissions cases, just as in public contracting cases like the one recently concluded in the City of Atlanta, is whether there is ongoing justification for using the legally protected, "suspect" class of race as a primary criteria for qualifications. Indeed, there may be instances where race is properly used as a determining factor, particularly in cases where there are ongoing vestiges of actual discrimination. Self-defined "diversity" is apparently not among the constitutional justifications for violating another's civil rights.

The problem for UGA, and for the City of Atlanta before it, is that there are literally no vestiges of actual discrimination. The high court has been specific, but it has been fair. In reality, not one race-based set-aside program for public contracting, for example, has been uphelf anywhere in the U.S. since the landmark 1989 City of Richmond v. Croson decision.

It's now crystal clear that lawyers Baker and Barnes miscalculated badly on this case. They should have listened to Judge Edenfield to begin with, even if Adams wouldn't. The taxpayers of Georgia, like their abused brethren in Atlanta, must be released from the folly of chasing legal windmills.

UGA now says it has moved to a system that considers all the qualities of the applicants without regard to race. As the Southeastern Legal Foundation has been emphasizing for 25 years, that's what it should have been doing all along.

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