Legality of affirmative action at stake

Federal appeals court to decide if diversity justifies reverse discrimination

Washington, D.C. – The future of affirmative action in education may be at stake tomorrow in Seattle when a federal appeals court considers whether diversity can be a constitutional justification for reverse discrimination. The question before the U.S. Court of Appeals for the Ninth Circuit arises from a lawsuit challenging the University of Washington Law School’s admissions preferences for minorities. A negative answer from the court would doom similar preferences at universities throughout the western U.S.

Smith v. University of Washington Law School was brought in 1997 by the Center for Individual Rights (CIR) on behalf of Katuria Smith and two other white applicants to the law school. The three were denied admission because they were subject to more rigorous admissions standards than those applied to minority applicants. The law school – like many universities nationwide – defends its racial preferences as necessary to achieve a diverse student body. It argues that the Constitution permits discrimination aimed at achieving such diversity.

The law school rests its constitutional argument on Supreme Court Justice Lewis Powell’s lone 1978 opinion in Regents of the University of California v. Bakke. CIR counters that a majority of the Supreme Court has never held that diversity can justify racial discrimination. Moreover, CIR notes, recent Supreme Court precedent points strongly towards the opposite conclusion.

In February, 1999, U.S. District Court Judge Thomas Zilly denied the plaintiffs’ motion for summary judgment after ruling that Powell’s Bakke opinion should govern the Smith suit. However, Judge Zilly denied the law school’s summary judgment motion as well, saying it was unclear whether the school complied with the standards set forth in Powell’s opinion. In addition, Zilly ruled that Washington State’s I-200, a 1998 voter initiative banning racial preferences, mooted the plaintiffs’ claims for an injunctive remedy. He also decertified a class action based on injunctive relief. The result was the instant appeal, in which the Ninth Circuit will consider Zilly’s rulings on Bakke, mootness, and class certification.

“With the legality of race-based admissions hanging by a thread, the Ninth Circuit’s decision may have a big impact nationwide,” noted Curt Levey, CIR’s Director of Legal & Public Affairs. “The nation’s universities are watching closely,” Levey added, “because the diversity rationale is their last hope for defending racial preferences.”