Supreme Court may revisit Bakke landmark

By Marcia Coyle

Fulton County Daily Report, January 18, 2001

A recent spate of conflicting federal court rulings could soon lead the U.S. Supreme Court to reconsider its landmark Bakke ruling on affirmative action.

In the past six months, in four different cases, two circuit courts and two district courts have held either that an educational institution’s desire for a diverse student body can never be a compelling justification for race-based preferences in admissions-or that it can be.

The issue of whether diversity is a compelling government interest is at the heart of a contentious debate over the continued viability of Board of Regents v. Bakke, 438 U.S. 265 (1978). The courts are not only split on whether Bakke is still good law, but also are divided on whether Justice Lewis F. Powell Jr.’s seemingly pivotal concurring opinion in that case-in which he said diversity is a permissible constitutional goal-is even the controlling opinion in Bakke.

Powell provided the key vote both in striking down the University of California at Davis Medical School’s admissions program and in rejecting an order enjoining the university from any consideration of race in admissions.

The most likely case to be filed first with the high court in this affirmative action war is Smith v. University of Washington Law School, No. 99-35209.

A panel of the 9th U.S. Circuit Court of Appeals ruled last month that educational diversity is a compelling governmental interest that survives strict scrutiny-the Constitution’s most searching review of race-conscious measures. The 9th Circuit’s ruling will not be appealed to the full circuit, according to the Center for Individual Rights (CIR). The organization represents Katuria Smith and other rejected applicants in the case, which is in direct conflict with another case decided in the 5th Circuit.

In Hopwood v. Texas, a 1996 decision involving The University of Texas School of Law, the 5th Circuit sent shock waves through the higher education and legal communities with the first ruling to find that Bakke had been superseded by more recent rulings. The Supreme Court subsequently refused to review that ruling.

Time to Settle It

With district courts in Michigan and Georgia now weighing in-and splitting, too-on the issue of diversity, litigators, scholars and others contend that it is time for the Supreme Court to settle the issue.

“It’s past time,” insists Professor John C. Jeffries Jr. of the University of Virginia School of Law, Justice Powell’s biographer. “It’s an intolerable situation for universities to be sued in one direction and then in another without guidance from the Supreme Court.”

In the background of all four cases is a question about the continuing support of the universities by the U.S. Department of Justice.

The Clinton Justice Department has filed supporting briefs for the universities, but a Bush Justice Department may not be so supportive.

“Obviously there have been changes in the past in the positions of one administration to the next, but it always raises questions about whether the government’s position is credible or whether the government ought to be allowed to continue to participate in the case,” says Theodore B. Shaw, assistant executive director of the National Association for the Advancement of Colored People Legal Defense and Educational Fund. “My fondest hope would be that the Bush DOJ would continue to take a position in support of these affirmative action plans,” he says. “It may be an unreasonable hope.”

Shaw and others agree that the Supreme Court is likely to step into the fray, but there is less agreement as to which of the four cases, if any, presents the best vehicle for the justices.

There are actually five key cases moving through the pipeline. Furthest back in the pack is a suit against the University of Michigan Law School, which is expected to go to trial shortly. The other cases are:

Hopwood v. Texas, No. 98-50506: The case that launched the war is still alive. A 5th Circuit panel in December affirmed a trial court ruling that the original plaintiffs didn’t have a realistic chance in 1992 of being admitted to the law school under a race-blind admissions program, a finding to be appealed to the full circuit, says Rosman.

The panel, however, rejected the university’s request that it reverse the original Hopwood decision’s holding that race cannot be used as a factor in achieving a diverse student body or to eliminate any present effects of past discrimination by the university and the public education system as a whole. The university has appealed that ruling as well.

Johnson v. Board of Regents of the University of Georgia, 106 F. Sup. 2d 1362 (2000): Three female applicants to the university challenged the legality of the school’s 1999 admissions process which, as part of a three-layer evaluation system, awarded extra points for race and gender. A district court judge held that Justice Powell’s opinion in Bakke was not binding precedent. Subsequent Supreme Court rulings, he wrote, particularly in the minority contracting arena, have held that diversity, while an important interest, is not sufficiently compelling to survive strict scrutiny. The university has appealed to the 11th Circuit, which is expected to hear arguments this spring, says its counsel, Mark Cohen of Atlanta’s Troutman Sanders.

Smith v. University of Washington School of Law: Smith, Angela Rock and Michael Pyle sued the law school in 1997 on behalf of themselves and a class of Caucasians claiming that they had been denied admission because of racially discriminatory admissions policies.

The case has never gone to trial, but it reached the 9th Circuit on appeal of a summary judgment ruling denying Smith’s claim that race cannot be used as a factor in achieving educational diversity.

The appellate panel examined the fractured ruling in Bakke to determine whether Justice Powell’s concurring opinion was the controlling opinion. The appeals panel decided that it was and held that the district court was correct on the diversity issue.

“We are well aware of the fact that much has happened since Bakke was handed down,” the panel wrote. “Since that time, the court has not looked upon race-based factors with much favor. Still, it has not returned to the area of university admissions, and has not indicated that Justice Powell’s approach has lost its vitality in that unique niche of our society.”

The case could return to the district court for trial, says David Burman of Seattle’s Perkins Coie, counsel to the law school. “The trial would be about whether the law school followed what’s allowed by Bakke with respect to admission of those three individuals.”

But realistically, he says, he expects CIR to file a petition for review at the Supreme Court.

“The fact that Bakke had been understood to mean one thing for 15 to 20 years before that organization brought the Hopwood case gives us a fair amount of confidence the Supreme Court will leave Bakke as it stands and conclude diversity is a compelling interest,” says Burman. “It would be very unfortunate if that understanding was pulled out from underneath universities after all this time.”

Timing will determine if and when a Supreme Court petition is filed, says Michael E. Rosman, CIR’s counsel to Smith as well as plaintiffs in the two Michigan challenges and Hopwood.

“We’ll look at whether the timing for the court to consider this issue is best now or two years from now, and whether we gain anything by developing the facts further in the district court,” he explains.

“Since Bakke was decided in ’78, the test for the use of race got tougher because of those contracting cases,” says Cohen. “In a way, district courts are doing the best they can. They’ve got a higher standard of review now but don’t have any additional Supreme Court precedent on the educational front. All they’ve got is Bakke, frankly.”

The only case since Bakke in which the high court has recognized diversity as a compelling governmental interest is Metro Broadcasting Inc. v. Federal Communications Commission, 497 U.S. 547 (1990), a 5-4 ruling applying an intermediate level of scrutiny to a federal diversity program for awarding broadcast licenses.

But in Adarand Constructors v. Pena, 115 S. Ct. 2097 (1995), the high court overruled Metro on its standard of scrutiny. Affirmative action opponents rely on Justice Sandra Day O’Connor’s dissent in Metro itself, in which she wrote that modern equal protection law has recognized only one compelling state interest: “remedying the effects of racial discrimination.”

Bakke is the only hope left for advocates of a fairly traditional kind of affirmative action, says Cohen’s opponent, A. Lee Parks of Atlanta’s Parks, Chesin & Miller.

“Courts that are sympathetic to the concept of diversity may be very uncomfortable as judges and lawyers with how dicta in the Powell opinion can be used to OK a fairly far-reaching use of race by public institutions,” says Parks. “That’s got to be resolved by the Supreme Court.”

Gratz v. Bollinger, No. 97-75231: In late December, a federal district judge upheld the University of Michigan’s existing use of affirmative action in admissions but found that its process from 1995-98 was unconstitutional. The judge held that the old policy, which used a grid to sort applicants-such as plaintiff Jennifer Gratz-by grades, test scores and race, was an unconstitutional quota-like system. However, the current policy was upheld because it rates applicants on a 150-point scale that includes race among other factors.

The district court, in direct contrast to the Georgia court, said it was not convinced that recent Supreme Court cases had established that the consideration of race in an attempt to achieve a diverse student body can never constitute a compelling interest.

This ruling, too, is likely to be appealed, says Rosman, co-counsel to the plaintiffs here and in the University of Michigan case.

The Michigan and Georgia cases, says Rosman, demonstrate how Powell’s opinion has been implemented.

“I think people’s general impression of the Powell opinion is that race can be used in a sort of small way, a subjective way, a tie-breaking way, and in fact, how most universities have implemented their vision of that opinion is to engage in the kind of numerical point advantage-significantly large point advantage-you see in Michigan and Georgia,” he says.

Because universities are so large and receive so many applications, it is difficult to spend much time on subjective elements, says the University of Washington’s Burman: “There tends to be more of a numerical approach to things.”

The Best Cases?

Because of what he calls the “stark nature” of the discrimination in the Georgia and Michigan university cases, Parks questions whether they are the “best” cases for the Supreme Court.

Those numerical-type systems often are found unconstitutional because they fail the requirement that the use of race be “narrowly tailored” to achieve the state’s compelling interest, he explains, and so the court could avoid the key question of diversity as a compelling interest.

“The Supreme Court will want a case where race is a subjective factor, along with other factors,” he suggests. “That seems closer to the true situation Powell talked about in Bakke.

“They want a case where professors and admissions people sit around a table and discuss applicants, and race may come into the discussion as a way to contribute to the educational environment of the school. That’s the case both academics and lawyers want decided.”

The Georgia Case

The attack on affirmative action in higher education has been highly organized and thoughtfully pursued, with CIR in the lead, says Professor Jeffries-much the flip side of the NAACP’s effort in the ’50s and ’60s. It also has focused primarily on institutions in the North, where there are no histories of state-sponsored segregation and so little remedial justification is presented for affirmative action, he adds.

“I hope the Georgia case stays in the mix for the Supreme Court because I think it’s so much harder to insist on a colorblind admission policy in a region of the country that until a generation ago was anything but colorblind,” says the professor.

Those attacking affirmative action in education believe that they have the five votes needed on the high court to quiet Bakke, says Shaw. “There is a distinction between higher education and contracting, voting and other types of cases in which race is the issue,” he adds.

“Everyone knows higher education is the engine of opportunity in this country, and if we close the doors to minority students, that will have a devastating effect on how we structure opportunity. While that may not be a legal argument, the court knows it,” Shaw says.

In the end, he and advocates on both sides agree, the answer may lie with Justice O’Connor, as it does on so many questions that divide the high court. While recent cases “all push the other way,” Professor Jeffries says, his intuition tells him that she will “pull up short” of simply outlawing the consideration of race in higher education.

“It may actually matter that Lewis Powell had the decisive voice in Bakke,” Jeffries says. “She is, in a lot of respects, his spiritual heir on the court. They were close personally, have similar styles of judging, and are not ideologues but look at facts carefully.

“I think Justice O’Connor is going to take a long, hard look before she rejects the Powell legacy on this issue.”