Appeals court may rehear key affirmative action case

Future of racial preferences at U. of Washington and beyond at stake

Washington, D.C. – A federal appeals court will consider whether to revisit a key question in the national debate over affirmative action. The question of whether attainment of a diverse student body can justify reverse racial discrimination arises in a lawsuit challenging the constitutionality of minority admissions preferences at the University of Washington Law School. In December, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled in the case that diversity can justify racial preferences. But in an unusual move, the court directed the parties to file briefs on whether the case should be reheard by the full Ninth Circuit. The plaintiffs’ brief, filed today, urges that the case be reheard.

Katuria Smith and the two other white plaintiffs in Smith v. University of Washington Law School were rejected by the Law School after being subjected to more rigorous admissions standards than those applied to minority applicants. The school claims that the resulting reverse discrimination is constitutionally justified, because it was used to achieve a diverse student body. This rationale is based on Supreme Court Justice Lewis Powell’s lone 1978 opinion in Regents of the University of California v. Bakke. But the plaintiffs, represented by the Center for Individual Rights (CIR), note that a majority of the Supreme Court has never supported the rationale and that recent Supreme Court precedent points towards the opposite conclusion. Indeed, the three-judge panel acknowledged that “the Court has not looked upon race-based factors with much favor,” but added that “we must let it decide” whether the diversity rationale “has become moribund.”

The plaintiffs urge the Ninth Circuit to revisit all the issues decided by the panel. In addition to the diversity defense, these include the panel’s ruling that Washington State’s I-200, a 1998 voter initiative banning racial preferences, mooted the plaintiffs’ request for a ban on future discrimination by the Law School. A third issue is decertification of the lawsuit as a class action, based on the mootness ruling.

If the Ninth Circuit declines to hear the case en banc, the plaintiffs may ask the U.S. Supreme Court to review the case. Otherwise, the suit will proceed to trial on the issue of whether the Law School’s racial preferences comply with Justice Powell’s standard. Powell said that race could be used as one of many factors designed to achieve a broad type of diversity, but could not be used for racial balancing.

“Although the Law School claimed to be seeking broad diversity, the evidence reveals that skin color was the predominant diversity factor in the admissions process,” said Curt Levey, CIR’s Director of Legal & Public Affairs. “Even if the Ninth Circuit ultimately decides that diversity can justify the limited use of racial preferences, the Law School’s practice of racial balancing will be ruled unconstitutional,” Levey predicted.

Photo: “University of Washington: School of Law Building” by Joe Wolf licensed under CC BY-ND 2.0.