Recently, I was asked to speak at the University of Washington Law School in Seattle. The formal session was set for the afternoon. There was also an informal conversation at lunch with the dean and a considerable number of faculty.
The dean, Roland Hjorth asked me what I wanted to talk about. “A case,” I said, “in which you and the law school are defendants.” The case, Katuria E. Smith v. University of Washington Law School, charges the law school with discrimination against a young woman who grew up in poverty and worked in hard, low-level jobs to finance her education.
When Katuria Smith applied to the law school, her scores were remarkably impressive. Her record included a 95th percentile score on the Law School Admissions Test (LSAT). Moreover, in her undergraduate college years, her quarterly grade point averages ran from 3.56 to 3.79 on a 4.0 scale.
More important was her determination, against long odds, to keep on keeping on. Years ago, Supreme Court Justice William O. Douglas told me that SAT and LSAT scores were less important than a person’s capacity to grow against the odds, showing a quality of character that reveals integrity of purpose.
Douglas proposed that admission criteria for law schools should focus on life experiences, including poverty, which would enable applicants to understand more of various other peoples’ lives than sheltered rich youngsters do, no matter how high their scores.
Under these standards, Douglas emphasized, black youngsters and Native Americans and poor kids in Appalachia would get into graduate schools before privileged white youngsters. That is the way affirmative action should go, he told me. But, he said, exclusively race-based and gender-based affirmative action is unconstitutional because automatic, collective preferences violate “equal justice under law.”
Remembering the intense lecture Douglas gave me back then, I had been following the antidiscrimination case of Katuria Smith for a year before I came to the very law school she was suing. It was clear to me that she was precisely the law school applicant Douglas had in mind.
I had already looked up whatever newspaper stories had been published in Seattle on Katuria Smith. The most telling quote from her was:
“I felt I was exactly the kind of person the University of Washington Law School would want. Most kids in my hometown expected me to end up in jail. Instead, I really did do something with my life.”
But what she had accomplished wasn’t good enough for the University of Washington Law School. This is a law school that prides itself on its commitment to a diverse student body.
For years, its policy has been: “In making admissions decisions, the Law School gives special consideration to applicants who are members of racial and ethnic minority groups that have been subject to long continued, pervasive discrimination . . . and that would not otherwise be meaningfully represented in the entering class.”
This is admission by collective identity. If you’re the wrong color—no matter what you have achieved against huge odds—you have a lesser chance of getting in.
On the application form, there are boxes where the applicant can identify his or her race. It is not mandatory to check any of the boxes. But Katuria made the mistake of marking “white,” figuring that who she is would count more than the color of her skin.
At lunch with the faculty members at the University of Washington Law School, I asked a question that, I think, went to the core of Katuria Smith’s case.
“What if Katuria Smith had chosen not to check the ‘white’ race box on her application?” I asked. ” ‘Katuria’ is not an easily categorized name. It could be the first name of a black applicant. And ‘Smith’ certainly could be a black name.
“With Katuria’s high scores,” I went on, “and also the proof of her determination to overcome poverty, would she have been accepted if the admissions committee had believed her to be black?”
There was no hesitation, no equivocation. “Yes,” the dean—an honest man—said. And several of the law professors nodded in agreement.
I looked at them. “So what kind of an admissions system are you running?
Is this the University of Washington’s definition of due process?” Or, I should have added, “Is this your definition of ‘equal protection of the laws?’ “
There was no answer. They told me that they were under a gag order because of the lawsuit and could say no more about the case. But they had already communicated an answer to my question as to whether Katuria would have been admitted if she was the right color.
I wasn’t getting to eat any lunch, but I couldn’t resist going on. I was intrigued because these were decent people. I had known one of the professors for years, and the young woman who had invited me in the first place had been a prosecutor very concerned with due process.
Some of these professors are part of the law school’s defense team against Katuria Smith. Are they comfortable in that role? I didn’t expect them to tell me, but I wanted to make them rethink the justice of preferring applicants according to their race or gender, rather than seeking out applicants of all colors who have transcended a range of disadvantages.
I reminded my hosts of Justice Lewis Powell, who established in the 1978 Bakke case that race could be a factor in admissions. But he had not stopped there. Powell added that race could not be the determining factor. And, he pointed out:
“The guarantee of equal protection [of the laws] cannot mean one thing when applied to one individual and something else when applied to a person of another color.”
Next week Katuria Smith tells what it’s like to be a target of those who are angry that she had the temerity to charge this well-intentioned law school with discrimination against a person of the wrong color.