Federal appeals court hears affirmative action suit against U. Washington

First big test of Supreme Court ruling on race-based admissions

Washington, D.C. —Today the U.S. Court of Appeals for the Ninth Circuit hears a lawsuit challenging the University of Washington Law School’s admissions preferences for minorities. It marks the first time that a federal appellate court is applying the Supreme Court’s new, stricter guidelines on race-based admissions, which arose from the High Court’s June 2003 decisions in two lawsuits against the University of Michigan. As a result, the appellate court’s decision is likely to have an impact nationwide, as well as within Washington, California and the rest of the Ninth Circuit. The Center for Individual Rights, which brought both the Michigan suits and this case — Smith v. University of Washington Law School — is hoping to use the Smith case to strengthen the new limits on racial admissions preferences.

Katuria Smith and her two co-plaintiffs contend that the Law School’s racial preferences violated both the Constitution’s Equal Protection Clause and federal civil rights statutes, under both the Supreme Court ‘s new guidelines and earlier precedents. UW’s race-based admissions system was discontinued after Washington voters approved a 1998 ballot initiative banning state-sponsored racial and gender preferences. However, the discriminatory system was in place when the plaintiffs were rejected in 1994-96. They seek damages based on being treated less favorably due to their skin color and on the likelihood that they would have been admitted under a non-discriminatory admissions system.

The plaintiffs are asking the Ninth Circuit to reverse U.S District Court Judge Thomas Zilly’s 2002 decision in favor of the Law School. In its Ninth Circuit briefs, CIR cites numerous ways in which the Law School’s admissions system violates the Supreme Court’s 2003 guidelines. For example, although the Supreme Court prohibited separate admissions tracks for different races, the Law School’s admissions system had different and more favorable procedures for minority applicants.

In addition, the Supreme Court held that a school must consider all types of diversity, not just racial diversity. Yet only minority applicants received letters from the Law School asking them to provide additional information about their contribution to diversity. In fact, UW concedes that, if Katuria Smith had had the opportunity to fill out such a letter, she would have been a much stronger candidate. Minority applicants, on the other hand, were given preferences even when they submitted a perfunctory response, at best, to the diversity letter. This practice contrasts sharply with the Supreme Court prohibition against universities treating race as if it “automatically ensured a specific and identifiable contribution to a university’s diversity.” Although the High Court also said that race must be used on the same footing as other diversity factors, the trial court found that “the race/ethnicity factor was the most important diversity factor affecting admissions decisions in all years.”

While the Supreme Court okayed the University of Michigan’s use of race to achieve the educational benefits of a “critical mass” of minorities — 11-17% of Michigan’s student body — the Court did not find that increasing minority enrollment beyond a critical mass justifies the use of racial preferences. In contrast, the Law School used preferences to achieve minority enrollment of 35% or more. Moreover, while the Supreme Court approved the use of limited preferences for “underrepresented” minorities, the School gave preferences to Asian-Americans, despite their being substantially overrepresented — at 14-18% of the student body — relative to the population of Washington and the nation.

Finally, although the Supreme Court requires a good faith effort to use race-neutral alternatives — rather than racial preferences — to achieve diversity, UW made no effort to determine if a race-neutral system could achieve the diversity it sought. In fact, Law School officials offered no explanation as to why race-neutral methods were never even considered.

“This case tests several of the key ingredients in the Supreme Court’s new standards for race-based admissions,” said Curt Levey, CIR’s Director of Legal & Public Affairs. “CIR’s goal in this case is to clarify and strengthen the new limits on using race in admissions,” said Levey, noting that “As the first appellate test of last year’s Supreme Court ruling, the Ninth Circuit’s decision may well have national significance.” “The nation’s universities are watching closely,” he added, “to see how much latitude they will have under the stricter guidelines for race-based admissions.”