Supreme Court Declines to Review Affirmative Action Case
Decision leaves education observers wondering when Court will revisit the issue
By Ronald A. Taylor
The U.S. Supreme Court’s decision last month to let stand a federal appeals court ruling on the University of Washington law school’s now-revised admissions policy left affirmative action advocates applauding, quota opponents grumbling and both sides wondering when the high court will revisit the issue of race-conscious admissions in higher education.
“Until the Supreme Court says otherwise, Bakke lives,” said NAACP Legal Defense Fund associate director-counsel Ted Shaw following the decision, referring to the 1978 Supreme Court ruling that allows race to be used in admissions as part of an effort to ensure diversity within the student body of public universities. The High Court “had the opportunity to say, ‘You got it wrong’ (but) didn’t act this time,” Shaw said.
Specifically, the Supreme Court simply declined to handle this affirmative action debate. Without comment, the justices decided not to review last December’s ruling by the U.S. Court of Appeals for the 9th Circuit on a suit brought on behalf of three White applicants to the University of Washington’s law school. In their suit, the applicants had contended that the law school’s admission policy was unfairly tilted against White applicants.
The Court’s decision not to review the case comes at the close of the admissions cycle for most universities. “Schools are in a wait-and-see mode,” says Professor Frank Wu of the Howard University School of Law. “In this case, the Court’s failure to consider the Washington case actually can be read as a positive. If the Court had wanted to strike down affirmative action clearly and decisively, then it would have taken the case. As a consequence of its not taking the case, the lower court decision stands. And that decision allowed affirmative action.”
Wu was among the chorus of affirmative action advocates whose glee at the Supreme Court’s action is tempered by the realization that still in the wings is the Court’s long awaited ruling on what remains one of the most divisive matters on the nation’s social policy agenda: affirmative action. Knowledgeable observers say the decision is merely a warm-up to the ruling on affirmative action that is sure to come about soon. “This case probably looked very messy to them,” says Harvard Law School
Professor Christopher Edley. In fact, the University of Washington law school’s admissions procedure has been revised by electoral mandate. Washington State voters in 1998 elected to eliminate racial preference from the public university admissions and state hiring processes. Still, Washington law school Dean Roland Hjorth called it “a
victory for the concept that diversity matters.”
Absent a ruling by the Supreme Court, the legal landscape of admissions in higher education remains a minefield for admissions offices, observers say. For the estimated 150 accredited law schools, judicial opinions offer conflicting guidance, says Dr. Reginald Wilson, American Council on Education senior scholar emeritus. “The denial of review was cautious good news because they still have to rule on affirmative action, and there are several contradictory cases they still have to rule on,” Wilson says.
The inconsistency is embodied in the conflicting federal court rulings on the University of Michigan’s affirmative action policies, Wilson and other academe observers say. In December, a federal court approved of the race component in the school’s undergraduate admissions procedures, declaring that there is “solid evidence regarding the educational benefits that flow from a racially and ethnically
diverse student body.” In March, a federal judge from the same court, ruling on a
challenge to the law school admissions process, said the use of affirmative action is unconstitutional (see Black Issues, April 12). The Michigan case is thought to be the most likely to be ruled on by the justices. But they could also zero in on similar cases involving admissions to schools in Georgia and Texas.
Still, says Wilson, the May 29 decision is an indication that the Supreme Court is “not ready to make a definitive ruling” and appears to be “sharply divided” over affirmative action in higher education leaving administrators with only tacit approval of affirmative action, which was provided in the Bakke ruling 22 years ago.
Curt Levey, of the Center for Individual Rights, which represented the plaintiffs in the University of Washington case, said the decision leaves the inconsistent rulings intact. And until then, the schools should “seek a broad type of diversity in which race is one of many factors instead of focusing almost entirely on skin color.”
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