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Published in Print: January 10, 2001, as Law Update

Law Update

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Affirmative Action Supporters Score Victories on Two Fronts

Affirmative action has been under attack for years, both in courts of law and public opinion. Those who defend the consideration of race to promote diversity in education have not enjoyed many victories recently—until last month, that is.

In major cases involving racial preferences in college admissions, both a federal appeals court and a federal district court issued rulings upholding the consideration of race in some circumstances. And a third decision brought fresh attention to a landmark federal appeals court ruling against considering race at the University of Texas law school.

The first of last month's rulings came Dec. 4 in a case involving the University of Washington law school. A three- judge panel of the U.S. Court of Appeals for the 9th Circuit, in San Francisco, upheld the school's consideration of race in student admissions from 1994 to 1998. The university eliminated the consideration of race in 1998 in compliance with the passage of a state initiative against racial preferences.

The university's past race-based admissions practices were challenged by a group of white applicants who were denied admission to the law school. But they lost both in federal district court and before the 9th Circuit panel, which held unanimously that the U.S. Supreme Court's 1978 ruling in Regents of the University of California v. Bakke allows the consideration of race as one factor among several in admissions decisions.

The panel said the narrow concurring opinion of then-Justice Lewis F. Powell Jr. in the Bakke case, which supported racial considerations to promote diversity in education, remains the controlling legal precedent.

"We ... leave it to the Supreme Court to declare that the Bakke rationale regarding university admissions policies has become moribund, if it has," the 9th Circuit panel said in Smith v. University of Washington.


Defenders of affirmative action soon scored another victory. On Dec. 13, U.S. District Judge Patrick J. Duggan of Detroit rejected a challenge by a group of white students to the University of Michigan's undergraduate admissions policies for its college of literature, science, and the arts.

Also citing Justice Powell's opinion in Bakke, the judge said that "diversity constitutes a compelling governmental interest in the context of higher education justifying the use of race as one factor in the admissions process."

Judge Duggan struck down the university's admissions criteria in use from 1995 to 1998 because they reserved places for minorities and amounted to rigid racial quotas. But the current criteria, which give underrepresented minority applicants "plus" points on the school's admissions index, pass muster because they do not seek to achieve a specific proportion of minority students, "let alone a proportion that represents the community," he said.

The judge said in the opinion in Gratz v. Bollinger that the University of Michigan had presented "solid evidence regarding the educational benefits that flow from a racially and ethnically diverse student body."

In both cases last month, Judge Duggan and the 9th Circuit court considered and rejected the rationale of a panel of the U.S. Court of Appeals for the 5th Circuit, in New Orleans, in its 1996 decision in the case known as Texas v. Hopwood.

In that decision, the 5th Circuit panel ruled 2-1 that race-based affirmative action could never be justified on the basis of encouraging campus diversity. The ruling sent shock waves throughout higher education, but the Supreme Court declined to review the ruling later that year.

The Hopwood case, which was filed by several white applicants rejected by the University of Texas law school, was returned to the federal district court in Austin, Texas, for consideration of several issues, such as whether the plaintiffs would have qualified for admission under a race-blind admissions policy.

The district court subsequently ruled that the white applicants would not have been admitted even if the law school had not taken race into account. In response to the 5th Circuit panel's Hopwood ruling, the district court also issued a broad injunction, however, against any consideration of race in admissions to the school.


That injunction by the district court prompted another appeal to the 5th Circuit court, and a new ruling in the case late last month by a separate panel of the appellate court.

The new panel sided with the University of Texas by reversing the district court's ban on all consideration of race in admissions. The appellate panel said the district judge would have to do more to justify such a broad injunction.

However, the Dec. 21 ruling reaffirmed the original 5th Circuit court panel's ruling against the consideration of race for diversity. The new panel said the 1996 panel would have to have made a "dead wrong" ruling of law to be reversed by another group of judges from the same court.

"Some may think it was imprudent for the [1996] panel to venture into uncharted waters by declaring the diversity rationale invalid, but the panel's holding clearly does not conflict directly with controlling Supreme Court precedent," the Dec. 21 ruling said.

—Mark Walsh

Vol. 20, Issue 16, Page 14

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