Smith v. University of Washington Law School, 392 F.3d 367 (9th Cir. 2004)

This is another case involving a challenge to affirmative action for minority students in law school admissions. A white female student sued the University of Washington in 1997, claiming that she was denied entry to the University's law school and that less qualified minority applicants were admitted over her. As in the Michigan cases, the plaintiff alleges that the University utilized different standards for white and minority applicants. In November 1998, voters approved a state initiative to ban race-conscious affirmative action in the public sector, and the University announced that it was taking steps to suspend the consideration of race and gender in admissions. A federal district court held that the state initiative made much of the case moot, including class-action claims seeking to declare the old admissions policy unconstitutional. The court also held that the discrimination claim should be decided based on principles enunciated in the Supreme Court's 1978 Bakke decision. The district court's decision was appealed to the Ninth Circuit regarding the applicability of the Bakke principles on diversity. As in the Michigan and Georgia cases, AAUP joined an amicus brief with the American Council on Education and many other higher education organizations emphasizing the educational benefits of diversity.

In December 2000 the Ninth Circuit upheld the district court's decision, concluding that the principles set out in the Supreme Court's Bakke decision govern. Applying Bakke, the Ninth Circuit held that "the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict-scrutiny of race-conscious measures." The Washington state law banning race-conscious affirmative action in public school admissions still remains in effect, however. Thus the University of Washington is still barred by state law from considering race in its admissions process. The opinion is available at In May 2001 the Supreme Court denied certiorari, leaving this Ninth Circuit opinion standing.

After the Supreme Court's denial of certiorari, the case went back down to the district court for a decision on the merits, in accordance with the Ninth Circuit's decision that the law of Bakke would govern. On June 5th, 2002, the United States District Court of the Western Division of Washington issued a decision concluding that the Law School's admissions policies during the years in question (1994,1995,1996) were consistent with Bakke, and therefore constitutional. The district court's decision (pdf) is available. The plaintiffs appealed the case to the 9th Circuit once again, but that court postponed decision on the case until after the Supreme Court had ruled on the Michigan cases (above).

Status: When the court finally turned to the case again, issuing a decision on December 20, 2004, all that was left to decide was "whether the Law School's admissions program was narrowly tailored to meet the compelling interest of educational diversity during the three years in which the plaintiffs applied—1994, 1995 and 1996—in order to determine whether the plaintiffs might be entitled to damages." The Ninth Circuit's December ruling concluded that "the Law School's narrowly tailored use of race and ethnicity in admissions decisions during 1994-96 furthered its compelling interest in obtaining the educational benefits that flow from a diverse student body, [and thus that] [t]he district court was … correct in entering judgment against the plaintiffs' damages claims." This conclusion, that the Law School's admissions program was sufficiently narrowly tailored, allowed the court not to reach the plaintiffs' other arguments. Read the decision (pdf).

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