Law & Courts

Law Update

January 10, 2001 4 min read
  • Save to favorites
  • Print

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

Related Tags:

A version of this article appeared in the January 10, 2001 edition of Education Week as Law Update

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Budget & Finance Webinar
The ABCs of ESSER: How to Make the Most of Relief Funds Before They Expire
Join a diverse group of K-12 experts to learn how to leverage federal funds before they expire and improve student learning environments.
Content provided by Johnson Controls
Science K-12 Essentials Forum How To Teach STEM Problem Solving Skills to All K-12 Students
Join experts for a look at how experts are integrating the teaching of problem solving and entrepreneurial thinking into STEM instruction.
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
School & District Management Webinar
Modernizing Principal Support: The Road to More Connected and Effective Leaders
When principals are better equipped to lead, support, and maintain high levels of teaching and learning, outcomes for students are improved.
Content provided by BetterLesson

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Law & Courts Conservatives’ Checklist: U.S. Supreme Court Education Decisions to Overrule
Here are five education issues that could be targets for reconsideration if Roe v. Wade falls.
3 min read
The Supreme Court in Washington, Dec. 3, 2021. The Supreme Court has turned away a plea from parents to block a new admissions policy at a prestigious high school in northern Virginia that a lower court had found discriminates against Asian American students.
The U.S. Supreme Court in Washington on Dec. 3, 2021.
J. Scott Applewhite/AP
Law & Courts Leaked Abortion Draft Has Supreme Court Education Cases in Political Cross-Hairs
Conservatives have taken aim at decisions on educating immigrants, race in admissions, and religion. Liberals have some cases in mind, too.
8 min read
supreme court SOC
Getty
Law & Courts 'Brown v. Board' Cited in Draft Supreme Court Opinion to Back Overturning Abortion Rights
The leaked opinion in a case still to be decided by the Supreme Court cites landmark decisions including Brown v. Board of Education.
7 min read
A crowd of people gather outside the Supreme Court, Monday night, May 2, 2022 in Washington. A draft opinion circulated among Supreme Court justices suggests that earlier this year a majority of them had thrown support behind overturning the 1973 case Roe v. Wade that legalized abortion nationwide, according to a report published Monday night in Politico. It's unclear if the draft represents the court's final word on the matter. The Associated Press could not immediately confirm the authenticity of the draft Politico posted, which if verified marks a shocking revelation of the high court's secretive deliberation process, particularly before a case is formally decided.
A crowd gathers outside the U.S. Supreme Court Monday night after the leak of a draft opinion suggesting the court intends to overturn the 1973 <i>Roe v. Wade</i> precedent that legalized abortion nationwide.
Alex Brandon/AP
Law & Courts Supreme Court Rules Against Some 'Emotional Distress' Claims. What It Means for Schools
The dissenters say the decision means students cannot recover damages for the emotional harms of race, sex, or disability bias.
5 min read
Image of the Supreme Court.
iStock/Getty