Supreme
Court Declines to Review Affirmative Action in Higher Education Supreme
Court Declines to Review Affirmative Action in Higher Education
By BEN GOSE
May 29, 2001
Washington--The Supreme Court this morning let stand an appeals-court ruling that found diversity to be an adequate justification for public colleges to consider race in admissions. The court's order, in a case that challenged the admissions policies of the University of Washington's law school, was something of a victory for supporters of affirmative action. Those advocates, including most college officials, feared that the court might use the case to review its landmark 1978 ruling, Regents of the University of California v. Bakke, on which most colleges' affirmative-action programs are based.
The order "is a very good sign that [the justices] are not eager to change the status quo," said David Burman, a lawyer who is representing the University of Washington. But legal scholars and experts on higher-education policy agree that at some point in the next few years, the Supreme Court is likely to review one of several other cases challenging college-admissions policies that are wending their way through the federal courts.
In 1996, in a case involving the University of Texas' law school, a federal appeals court repudiated Bakke, declaring that diversity was not a valid justification for race-based preferences. The Supreme Court declined to review that case, known as Hopwood, later that year, but the University of Texas has submitted another request for review that is pending before the court.
Last year, a separate appeals court upheld the University of Washington's affirmative-action policies, citing the Bakke decision as the law. "It's been a very long time since [the justices] looked at the Bakke question," said Martin Michaelson, a lawyer who advises colleges on affirmative action. "They'll probably take another look at affirmative action in college admissions in the next few years, but I would not predict which case they'll take." Curt A. Levey, director of legal and public affairs at the Center for Individual Rights, the nonprofit legal group representing the plaintiffs in the Washington case, said he wasn't surprised by the Supreme Court's action.
Like Mr. Michaelson, he said he expected the court to re-examine the issue soon through one of the other cases -- such as challenges to the use of racial preferences at the University of Georgia and at the University of Michigan's undergraduate college and law school. "With any one of these cases, the odds are considerably under 50 percent" that the court will review it, Mr. Levey said. "You never know why they're not taking the case."
The lawsuit against the University of Washington was brought by three white applicants who charged that its law school had violated their constitutional rights to equal protection by using more-rigorous standards for white students than for minority students. The U.S. Court of Appeals for the Ninth Circuit in December upheld a ruling for the university by citing the Bakke decision, which said that institutions could use race as a factor in admissions but could not set aside specific numbers of places for members of minority groups.
Lawyers for the University of Washington argued that there was no reason for the Supreme Court to review the Ninth Circuit's decision, because the law school had abandoned the disputed admissions policy in 1998, after Washington voters approved a referendum that banned affirmative action.
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