Oct. 4, 2005

End of the Line for Wash. Affirmative Action Case

On a busy first Monday in October for the U.S. Supreme Court — marking not only John G. Roberts’s first oral arguments as chief justice but President Bush’s nomination of Harriet Miers to replace Associate Justice Sandra Day O’Connor — the court declined to hear several higher education cases, letting stand lower-court rulings.

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Most prominent among them was Katuria E. Smith v. University of Washington Law School, which was one of a series of major challenges to higher education’s use of affirmative action in admissions during the mid- to late 1990s. The Smith case, in which a white female applicant said that she was denied admission to Washington’s law school because of its unconstitutional consideration of applicants’ race, was largely overshadowed by two cases at the University of Michigan, in which the U.S. Supreme Court ruled in 2003.

The Supreme Court declined to hear Smith’s case in 2001, supporting the conclusion by lower courts that the passage of Initiative 200, a state ballot measure that restricted the use of race in a range of activities by public agencies, including colleges, had made the case largely moot. But lawyers for Smith continued to pursue the case by challenging the admissions policies that had been in place at Washington’s law school between 1994 and 1996, before the statewide ban took effect.

The Center for Individual Rights, which represented Smith as well as the plaintiffs in the Michigan cases, hoped to use the case to help narrow the federal courts’ definition of what practices were allowable, and which weren’t, under the legal standards the Supreme Court laid out in its ruling that upheld the constitutionality of considering race in a narrowly tailored way to achieve diversity.

Last December, the U.S. Court of Appeals for the Ninth Circuit issued a ruling in the Smith case that upheld Washington’s policies at the time. The decision, the first involving affirmative action and college admissions in the wake of the Michigan cases, generally was seen as evidence that the Supreme Court’s Michigan rulings could be interpretedin ways that gave colleges broad latitude to craft admissions policies that consider race.

By declining on Monday to hear Smith’s appeal of the Ninth Circuit’s ruling, the Supreme Court lets that decision stand.

The court also let stand several other cases involving higher education, including:

• an employment discrimination case involving a professor at Kennesaw State University and the Board of Regents of the University System of Georgia.
• a patent infringement and Eleventh Amendment case involving the University of Illinois and Fujitsu Limited.
• an unsuccessful racial discrimination lawsuit brought against Texas Tech University by two foreign professors.

Several experts in higher education law said Monday that they were unaware of any involvement that President Bush’s new nominee to the Supreme Court, Harriet Miers, has had with higher education issues, legal or otherwise, during her career as a lawyer in private practice in Texas and in the White House. The phrase “a blank slate” was uttered by more than one of those asked.

— Doug Lederman

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