A Reprieve for Affirmative Action In Higher Education

Recently it appeared as if courts and

legislatures were putting an end to affirmative action in higher education.†

In Georgia, a federal court held that the University of Georgia's use of

race and gender in admissions did not pass constitutional muster even though

ìdiversityî was its stated goal.† In Florida, the legislature passed

a law prohibiting the use of race, gender or national origin in higher

education admissions.† Two courts, however, have bucked the trend,

upholding the use of race in admissions to achieve diversity.† The key

issues remain whether a college or university can demonstrate that its goal of

diversity is a compelling interest and whether the use of race in the

admissions process is narrowly tailored to reach that goal.

In the Ninth Circuit, several white applicants

for admission to the University of Washington law school filed suit claiming

that they had been denied admission because of their race.† Smith v.

University of Washington, 233 F.3d 1188 (9th Cir. 2000).† From 1994 to

December 1998, the law school had used race in its admission process to ensure

the enrollment of a diverse student body.† On November 3, 1998,

Washington passed Initiative Measure 200 (I-200), which prohibited

discrimination against, or preferential treatment to, any individual or group

on the basis of race, sex, color, ethnicity or national origin in public

education.† As a result of I-200, the University eliminated the use of

race in its admission process.

On appeal, the Ninth Circuit determined that

the passage of I-200 mooted the plaintiffs' claims for prospective relief.†

Nevertheless, with respect to the University's prior admissions program, the

Ninth Circuit held that diversity, in the context of higher education, was a

compelling governmental interest that met the requirements of strict scrutiny

and that race could be considered for other than remedial purposes.† In

so finding, the Ninth Circuit relied on Justice Powell's opinion in Regents

of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).† Justice Powell's

opinion laid down four principles: (1) strict scrutiny applies to

classifications based on race; (2) using race to ensure a specific number of

students is facially invalid; (3) the state has a legitimate and substantial

interest in rectifying identified discrimination, and (4) a diverse student

body is a constitutionally permissible goal for an institution of higher

education.† Bakke, 438 U.S. at 311-12.

The University argued that...