Case Overview:

The greatest impact that the Smith et al. v. University of Washington Law School et al case could have had on higher education was lost after the Courts rejected Smith’s claim that University of Washington Law School was unconstitutionally determining admissions decisions on the basis of race. According to an article that appeared in Black issues in higher education, three years after the court case made its first appearance in the legal environment, Ronald A. Taylor concludes that “[…] the Supreme Court is not ready to make a definitive ruling and appears to be sharply divided over affirmative action in higher education” (Taylor, R. A., 2001). Taylor further explains that institutions of higher learning are left with tailoring institutional admissions goals with race and ethnicity in mind, per the University of California v. Bakke ruling on affirmative action in 1978. Many proponents of affirmative action consider the Smith v. University of Washington Law School case a positive sign that racial consideration is still viewed as a positive in many establishments. “If the Court had wanted to strike down affirmative action clearly and decisively, then it would have taken the case” (Taylor, R.A., 2001).

To say that it’s the Court decided to not move forward with the Smith v. University of Washington Law School case was a constructive decision reveals a lack of consideration for the current climate of diversity in higher education. The Bakke ruling on affirmative action was determined over twenty years ago, and has since been challenged in local and federal courts several times over again—with no prevail. Curt A. Levey, the representative for the plaintiffs in the Smith v. University of Washington Law School (and represented the Bollinger cases in Michigan) does not believe that universities are actually concerned with the integration of races and the diverse exchange of ideas on the college campus. If colleges were concerned with the integration of races, they would not promote such minority-oriented organizations and programs. Rather, they would form clubs to encourage further integration on the college campus (Levey, C.A., 2003). In addition, Levey points out that 90% of professors indentify themselves as Democrats or liberals, however, one would have to conclude that a college with the true intent to create an environment of diverse opinions and experiences would, in theory, be concerned that the political preference of college professors were predominantly left (Levey, C.A., 2003). Putting aside all the minute inconsistencies between university philosophies versus actual university practices that Levey points out in his commentary against affirmative action in higher education, it should be considered that perhaps there is reason for the Courts to revisit the Bakke ruling.

The opinion that appears to be the most balanced between the two sides of this debate is represented in Richard D. Kahlenberg’s article titled “Toward affirmative action for economic diversity.” In a study conducted by Anthony P. Carnevale and Stephen J. Rose, it was determined that in 2004 institutions of higher education have an underrepresented class of students that was greater than that of students considered a minority under affirmative action. This group of students was identified as the low-income students at elite colleges (Kahlenber, R. D., 2004). This is an untapped opportunity for the Courts and institutions of higher learning to focus on assisting a group of people, without focusing on race or ethnicity. “[…] in practice, affirmative action in higher education does little to reach those low-income and working-class minority students” (Kahlenber, R. D., 2004). Bowen and Bok, affirmative action supports, found that 86% of students at elite universities were middle class or upper-middle class, whereas economic affirmative action could account for both the lower class students and the students of minority race and ethnicity. For example, African-American students were 16 times more likely to be admitted into the 2002 fall class at the University of California at Los Angeles School of Law when factors such as wealth and single-parent-family status was taken into consideration (Kahlenber, R. D., 2004).

At the time of trial for the Smith v. University of Washington Law School case, the state of Washington had implemented a state law that prevented the discrimination against, or grant preferential treatment to, any individual or group based on race, sex, color, ethnicity, or national origin (Smith et al., v. University of Washington Law School et al., 2004). With the state law as it stands, the University of Washington claimed that they look at academic achievement in the context of additional outside factors (such as family income, number of children in family, parents’ educational level, etc…), which could promote a more diverse climate on the campus of the institution (Kahlenber, R. D., 2004). Although this particular case presented the Courts with an opportunity to revise the Bakke ruling from 1978, it rather raised the debate and created awareness of the other factors that university admissions offices should be considering to promote campus diversity, outside of the antiquated racial and ethnic preferential tailoring.