Future of racial preferences at U. of Washington and across the nation at stake
Washington, D.C. – The U.S. Supreme Court has been asked to decide the key question in the national debate over affirmative action. White applicants challenging the constitutionality of minority admissions preferences at the University of Washington Law School asked the Court today to rule on whether attainment of a diverse student body can justify racial discrimination. If the Court hears the case and rejects the diversity justification, the decision would call into doubt minority preferences at universities nationwide.
Katuria Smith and the other two 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 this discrimination is constitutionally justified, because it was used to achieve a diverse student body. This reasoning is based on Supreme Court Justice Lewis Powell’s lone 1978 opinion in Regents of the University of California v. Bakke. 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.
The plaintiffs, represented by the Center for Individual Rights (CIR), point out that a majority of the Supreme Court has never endorsed even the limited use of race envisioned by Powell. Moreover, they note, recent Supreme Court precedent appears to affirmatively rule out racial preferences for diversity’s sake.
A panel of the U.S. Court of Appeals for the Ninth Circuit acknowledged in a December decision in Smith that the Supreme Court “has not looked upon race-based factors with much favor.” But the three-judge panel accepted the diversity rationale, explaining that it would let the Supreme Court decide whether the rationale “has become moribund.” In an unusual move, the appeals court directed the parties to file briefs on whether the case should be reheard by the full Ninth Circuit. The plaintiffs’ brief, filed January 31, urged that the case be reheard. The Law School opposes the en banc rehearing.
Curt Levey, CIR’s Director of Legal & Public Affairs, predicted that “the University of Washington’s admissions process will ultimately be ruled unconstitutional, because the evidence shows that skin color was the predominant diversity factor in admissions.” “Like so many admissions systems that purport to seek true diversity, the Law School’s policies were aimed at little more than racial balancing,” Levey explained.