Courts Again Struggle with
Affirmative Action Practices in
College and University Enrollments

A pending federal court appeal provides the most recent evidence that lawyers and judges continue to wrestle with the issue of diversity in higher education.

In Smith v. University of Washington Law School, three white individuals have claimed a denial of their constitutional rights in the rejection of their law school applications.

Ms. Smith had spent several years attending community colleges before she enrolled in the University of Washington's undergraduate business program.

Her grade point average and Law School Admission Test (LSAT) scores were high; however, the law school rejected her application.

Grade point average and LSAT scores were not the sole criteria law school officials considered in reviewing applications. The admission process also afforded favorable consideration to an applicant's racial or ethnic status (termed "diversity factor").

Arguably, the absence of a diversity factor was dispositive for Ms. Smith's application. The Dean of the law school admitted during the course of the litigation that, had she been an African-American, Ms. Smith would have been admitted to the school.

Ultimately, a federal district court decided against the Smith plaintiffs, holding that the law school's admission process was similar to that approved by Justice Powell in his Regents of the University of California v. Bakke opinion. (See In Brief, Fall 1996)

The Smith plaintiffs, however, have appealed the ruling to the US Court of Appeals for the Ninth Circuit. In their arguments before that court, the plaintiffs' lawyers have argued that preferences such as those the law school employed are discriminatory. They add that since the Bakke ruling, the US Supreme Court "has made clear that any form of race discrimination must be justified by a compelling government interest and be narrowly tailored to meet that interest."

In defense of the law school's admissions process, the school's counsel urge the value of diversity: "The educational benefits of diversity in law schools hardly need discussion. Imagine two first-year constitutional law classes discussing Equal Protection law and the role of the judiciary in addressing racism in American society. One class is all white, and the other class has several black, Latino, Asian American, and foreign students.

"Which class would have the better discussion? In which class would the students learn more from exchanging views and experiences with each other?

"Is there any doubt that diversity among the student body--with race as one of many factors considered in making a student body 'diverse'--makes for a better education?"

To date, the US Supreme Court has issued no definitive ruling on the issue of diversity in higher education enrollments since Bakke. Moreover, many dispute whether Justice Powell's discussion in Bakke is indeed definitive, as a majority of the Court did not join in the opinion.

Published in the Summer 2000 Edition of In Brief