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Not a Class Action

by Black Issues

Not a Class Action

Judge rules that passage of Washington State’s Initiative 200 downgrades status of reverse discrimination lawsuit
By Eric St. John

SEATTLE — In a move that many observers feel undercuts the anti-affirmative action campaign, a federal judge has ruled that a reverse discrimination lawsuit against the University of Washington Law School can no longer have class-action status because of the passage of Initiative 200.
Only the damage claims of Katuria E. Smith and two others who brought the case will be considered, U.S. District Court Judge Thomas S. Zilly decided last month.
Ted Shaw, of the NAACP Legal Defense and Education Fund, says it could be anticipated that “the significance of the lawsuit … would be undercut given that you now have
I-200″ as law in the state.
“Its value as a precedent setter is diminished,” he says. “Now, there is not a need for a federal court to announce a broad principle of law that is applicable constitutionally because the state law eliminates [that need].”
One goal of the suit, filed in March 1997, was to bar the university from giving minority applicants special consideration in admissions. She and the other two plaintiffs also sought unspecified damages.
Last Nov. 3, the initiative banning race and gender preferences in state contracting, hiring and school admissions won passage on a 58 percent statewide vote. The university’s president, Dr. Richard L. McCormick announced the next day that the university would no longer use race in admissions (See Black Issues, Nov. 26, 1998).
“What the court basically said is that the citizens of the state of Washington did its job for it,” says Steven Hemmat, a lawyer for the plaintiffs.
A settlement conference was scheduled before another judge to consider settling the case without a trial, which was set to begin Feb. 22.
Legal experts say the ruling practically eliminates any chance that the case could affect the national legal battle over affirmative action.
“I don’t think this judge is inclined to declare Bakke [the 1978 Supreme Court decision that allowed racial considerations for college admissions] to no longer be good law,” Shaw says. “If he were inclined to do that, he could [have allowed the class-action status] to remain….
I think he is correct on this point of law.”
Shaw also says that Zilly “is taking a very narrow interpretation of the case and being very cautious in his judgement.”
Erwin Chemerinsky, professor of constitutional law at the University of Southern California, agrees: ” It greatly reduces the likelihood that it’s going to set an important precedent…. It also greatly reduces the chances that it’s going to be a major Supreme Court case on affirmative action.”
Initially, the suit was filed by Smith, a White woman who was denied admission in 1994. That year, the school received 2,552 applications for a class of 187. She contended that Black and Hispanic applicants with lower grades and test scores were admitted.
Later, the suit was made a class-action lawsuit and the names of two other plaintiffs were added — Angela Rock and Michael Pyle, who were denied admission in 1995 and 1996, respectively.
But despite the loss of class-action status, Shaw says he believes the anti-affirmative action forces will still try to use the case to their advantage.
“The Smith litigation remains as a viable threat to affirmative action around the country,” he says.
And the plaintiffs’ lawyers confirm that assessment, saying that the case still could prove influential. To determine whether they are entitled to damages, the judge must examine the constitutionality of the old admissions policy — “the admissions system that’s used by just about all law schools in this country,” says Terence Pell, a spokesman for the Center for Individual Rights in Washington, D.C.
Chemerinsky, however, says the judge could rule only on the three individual situations without setting any precedent at all — a view also taken by Richard Kummert, chairman of the UW Law School’s admissions committee.
“It makes it now a much less important national case,” Kummert says. “We are down to literally having three disappointed people who are suing us for damages.”
And Shaw doubts that the plaintiffs can expect any financial reward from the suit.
“There is no reason to believe that the plaintiffs will receive monetary damages,” he says.
The Associated Press contributed to this story.



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