Civil Rights
Feb. 21, 2001
Preference Principle
Ultimately, the conflict between the circuits must be resolved by the Supreme Court. But no case to do so is on the docket for this term.
Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law
Erwin's most recent book is "Worse Than Nothing: The Dangerous Fallacy of Originalism." He is also the author of "Closing the Courthouse," (Yale University Press 2017).
In recent years, affirmative action has taken a beating. The U.S. Supreme Court has held that race-based programs to benefit minorities must meet the same standard under the Equal Protection Clause - strict scrutiny - as government actions that disadvantage minorities. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989).
In 1996, in Hopwood v. University of Texas, 84 F.3d 720 (5th Cir. 1996), cert. denied, 116 S.Ct. 2581 (1996), the 5th U.S. Circuit Court of Appeals ruled that public colleges and universities may not use race as even one factor in admissions to enhance diversity and benefit minorities. Since then, the issue has been unresolved as to whether other circuits will follow Hopwood and, ultimately, what the Supreme Court will do.
In December 2000, in Smith v. University of Washington Law School, 233 F.3d 1188 (9th Cir. 2000), the 9th Circuit settled part of this uncertainty. The court emphatically held that public universities may use race as a factor in admissions decisions to increase diversity and help racial minorities.
In California, this is unlikely to have a major impact, because Proposition 209 abolishes all preferences based on race and gender in public education, public contracting and public employment. California Constitution, Article I, Section 31. But in other states in the 9th Circuit, and in other circuits to consider the issue, the decision in Smith could have a major impact.
Smith involved a challenge to the University of Washington Law School's affirmative-action program. The suit was brought by white students who were denied admission to the school.
While the suit was pending, Washington voters adopted Initiative Measure 200, a voter initiative quite similar to California's Proposition 209. Initiative Measure 200 provides, "The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity or national origin in the operation of public employment, public education, or public contracting."
The university moved to dismiss the suit on mootness grounds. The federal District Court granted the motion to dismiss as to the claims for injunctive and declaratory relief. The court found, however, that the claim for money damages was not moot.
The District Court certified two questions to the Court of Appeals pursuant to 28 U.S.C. Section 1292(b): "(1) whether educational diversity is a compelling interest that meets the requirement of 'strict scrutiny' for race-conscious measures under the Fourteenth Amendment to the United States Constitution; and (2) whether race may be considered only for remedial purposes."
The 9th Circuit upheld the District Court's rulings as to justiciability: The claims for injunctive and declaratory relief were deemed moot, but not the claim for money damages. The 9th Circuit thus reached the questions certified and upheld the constitutionality of race-based admissions programs.
Judge Ferdinand Fernandez's opinion for the court relied on Justice Lewis F. Powell's opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), as the controlling authority. This is significant because the 5th Circuit in Hopwood expressly said that it no longer regarded Bakke as good law because of later cases limiting affirmative action.
At the conclusion of his opinion, Fernandez directly addressed the question of whether Bakke remains good law. He wrote, "We are well aware that much has happened since Bakke was handed down. Since that time, the Court has not looked upon race-based factors with much favor. Still it has not returned to the area of university admissions, and has not indicated that Justice Powell's approach has lost its validity in that unique niche in our society. As we see it, regardless of what we think the Supreme Court might do, we must let it decide."
The 9th Circuit explicitly recognized that the 5th Circuit had come to an opposite conclusion in Hopwood, but Fernandez said that "[t]he flaws in that decision" stemmed from its failure to follow a Supreme Court ruling that had not been overruled. Interestingly, the 9th Circuit panel in Smith included a 5th Circuit judge, Senior Circuit Judge Thomas M. Reavley, sitting by designation.
In considering the constitutionality of the University of Washington Law School's affirmative-action program, the 9th Circuit recited the well-established rules that racial classifications must meet strict scrutiny and that a set-aside of slots for minorities would be "facially invalid."
However, in the crucial section of the opinion, the court quoted Bakke that "the attainment of a diverse student body 'is a constitutionally permissible goal for an institution of higher education.' In that regard, 'ethnic diversity' can be 'one element in a range of factors that a university may properly consider in attaining the goal of a heterogeneous student body.'" In other words, colleges and universities may use race as one factor in admissions decisions to increase diversity and benefit minority students.
The 9th Circuit's decision in Smith is important for many reasons. First, Supreme Court review of the issue, in this or a similar case, is likely because of the direct conflict between the 9th Circuit's decision and the 5th Circuit's ruling in Hopwood. The 9th Circuit is considering whether to grant en banc review in Smith, and the attorney for the plaintiffs plans to file a petition for review in the Supreme Court.
Second, unless and until the Supreme Court rules to the contrary, the many states in the 9th Circuit can pursue diversity in their colleges and universities so long as state laws do not prohibit doing this. California and Washington voters passed initiatives eliminating affirmative action, but in all of the other states in the 9th Circuit - Alaska, Arizona, Hawaii, Idaho, Nevada, Oregon and Montana - race-based programs are constitutional under the terms outlined by Powell in Bakke.
Finally, the 9th Circuit's ruling in Smith could be quite important in other courts facing the same issue. For instance, a challenge to the University of Michigan Law School's affirmative-action program is pending. Smith's strong affirmation of Bakke and validation of affirmative-action programs could influence other courts.
Ultimately, the issue and the conflict between the circuits must be resolved by the Supreme Court. But no case to do so is on the docket for this term. At least for now, the law in the 9th Circuit is that colleges and universities may consider race as a factor in admissions decisions to enhance diversity and benefit minorities.
Erwin Chemerinsky is Sydney M. Irmas Professor of Public Interest Law, Legal Ethics, and Political Science at the University of Southern California.
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