High court test
looms for affirmative action High court test
looms for affirmative action
Mich. Case highlights demands for review
By Lyle Denniston, Globe Correspondent, 3/30/2001
WASHINGTON - For nearly a quarter-century, legions of minority students have entered selective public colleges and schools through a welcoming portal of affirmative action. But a federal judge in Detroit Tuesday issued a blunt reminder that the portal could close, as he struck down the admissions policy at the University of Michigan Law School.
The ruling was the latest of several conflicting decisions by federal courts in the last year on whether colleges can consider race or ethnicity in admissions. The widening dispute within the courts has led prominent lawyers on all sides to suggest that the Supreme Court could step in soon and consider the issue for the first time since 1978 - the year of the landmark Bakke decision.
In that case, the court ruled, 5-4, that Allan Bakke, a white applicant, must be accepted to the University of California at Davis medical school because the school held 16 spaces for minority students, an unconstitutional quota. But the court specifically upheld the constitutionality of affirmative action.
Two federal appeals courts now have reached opposite rulings on how to interpret Bakke, and those are the decisions now at the Supreme Court or soon to reach it. In one, an appeals court said race is no longer allowed as an admissions factor, but another appeals court has disagreed. That kind of split often leads the Supreme Court to get involved.
''I think the court is likely to take one of these cases,'' said Martin Michaelson, a Washington, D.C., lawyer who defends colleges in such cases. ''I am surprised that 23 years have elapsed since Bakke in which the court has not looked at the question a second time.'' The same prediction comes from the other side of the legal battleground. Curt A. Levey, legal director of the Center for Individual Rights, an advocacy group that is battling affirmative action in several states, said ''the court has left us for 23 years with a very muddled decision.'' The time has come, he added, ''to clear it up.''
Levey's organization has just appealed to the Supreme Court the case of three white students denied admission to the University of Washington Law School at a time when minorities with lower scores were getting in. The three are Katuria Smith, Angela Rock, and Michael Pyle. Not one of the five justices who made up the majority when the court decided Bakke v. Board of Regents remains on the court. The group of five that now prevails when race is at issue before the court has repeatedly struck down government policies providing preferences based on racial identity. Even if the court is ready to reopen the issue, the outcome of a new review of affirmative action in public education is far from predictable.
''I think it's a mistake for those who oppose affirmative action to predict its certain demise,'' argued Theodore B. Shaw, a leading legal strategist for the NAACP Legal Defense Fund in its continuing campaign to save affirmative action. Those who expect it to be cast aside, he said, are relying mainly on Supreme Court rulings against the use of race in public contracting and redistricting. ''Higher education is in a different category,'' Shaw said.
''The court's going to understand what's at stake here.'' Yet some who support the Bakke ruling fear it will not survive Supreme Court review in its current form. Sheldon Steinbach, general counsel of the American Council on Education, an umbrella group of 1,800 colleges, said he sees no reason to be pessimistic about Bakke's fate, ''but that does not mean that it might not be altered.''
Bakke has been under siege in lawsuits across the nation in recent years, while voters in California and Washington rebelled against the use of race as a factor in government decisions. And, with the Detroit ruling this week, the University of Michigan Law School joins at least one institution in Georgia and all state universities in Louisiana, Mississippi, and Texas ordered by federal courts not to use race as an admissions factor.
Other universities, fearing lawsuits, have set aside race-based admissions on their own, including the University of Massachusetts. The two appeals that could put the issue back before the Supreme Court involve the law schools at the universities of Washington and Texas. In the Washington case, now pending at the Supreme Court, the US Court of Appeals for the Ninth Circuit ruled that Bakke and its approval of some use of race in admissions selections remains the controlling law of the land. The Texas case is perhaps the best-known lawsuit on college admissions since Bakke.
That lawsuit usually is known by the name of one of the four white students involved: Cheryl Hopwood, who was denied admission to the law school under a two-track system that eased entry for blacks and Hispanics. The Texas institution is faced with a flat declaration by the Fifth Circuit Court of Appeals that race no longer can play a role in the admissions process.
The Hopwood case is due back at the Supreme Court next month. Civil rights groups have been leery of any renewed interest by the justices in affirmative action in public education, because they fear the worst. After the court in 1997 agreed to hear an appeal by a white teacher in a Piscataway, N.J., high school who had been laid off to save the job of a black teacher, the Black Leadership Forum, a collection of civil rights organizations, raised the money to pay for settling the case out of court.
Similarly, when Boston school officials made plans to go to the Supreme Court in early 1999 seeking to revive affirmative action admissions at Boston Latin School that had been nullified by the First Circuit Court of Appeals, civil rights groups persuaded school officials to drop the idea. Now, perhaps, the issue can be postponed no longer.
This story ran on page A02 of the Boston Globe on 3/30/2001. © Copyright 2001 Globe Newspaper Company.
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