(This is the first in a series of posts looking at the history of court cases involving affirmative action in college admission.)
The 1978 Bakke case is generally listed as the first case in which the United States Supreme Court considered the use of race-based affirmative action in college admission, but the Court had actually previously considered the issue four years before in the case, DeFunis v. Odegaard. Why doesn’t the DeFunis case get more attention? Because ultimately the Court decided not to decide, ruling that the case was moot.
Marco DeFunis applied for admission to the University of Washington Law School in 1971 and was denied admission (actually wait listed). He then brought suit in a state court asking for an injunction ordering the law school to admit him, claiming that “the procedures and criteria employed by the Law School Admissions Committee invidiously discriminated against him on account of his race in violation of the Equal Protection Clause of the Fourteenth Amendment.” The trial court granted the injunction, and DeFunis enrolled in the UW Law School in the fall of 1971.
A year later, the Supreme Court for the state of Washington reversed the lower court’s ruling, holding that the Law School admissions policy did not violate the Constitution. DeFunis then petitioned the U.S. Supreme Court for a writ of certiorari, and Justice William Douglas stayed the judgment of the state Supreme Court pending consideration of the case by the federal Supreme Court. By that time DeFunis was in the fall semester of his final year of law school, and one question was if the U.S. Supreme Court upheld the Washington Supreme Court, would DeFunis be able to finish or be forced to reapply for his last semester.
When the case came before the entire Supreme Court, DeFunis had registered for his final term at the law school. Because DeFunis had filed his lawsuit on his own behalf and not as a class action suit, the majority of the Supreme Court concluded that the case was moot, no longer within the Court’s purview given that its decision would not change DeFunis’s ability to graduate.
Justices William Brennan and William Douglas voted in the minority that the case was not in fact moot, and Justice Douglas issued a written dissent. It is that dissent that constitutes the most noteworthy aspect of the DeFunis case.
Douglas began his dissent with an explanation of the law school’s admissions process. It received 1601 applications for 150 spots, and offered admission to 275 applicants in order to yield the 150. 37 of the admission offers, 18 of whom enrolled, came as a result of a minority admissions program. Eligibility for the minority admissions program was solely determined by an applicant’s answer to an optional question asking if their “dominant” ethnic origin was “black, Chicano, American Indian, or Filipino.”
To make admission decisions, the law school calculated a Predicted First Year Average index for each applicant incorporating two components, grades from the last two years of college and score on the Law School Admission Test, or LSAT. The highest average was 81, and based on previous years the law school Admissions Committee determined that applicants with averages above 77 were strong candidates for success. Every applicant with an average above 78 was admitted, and 93 of 105 applicants with averages between 77 and 78 were admitted. Applicants with averages below 74.5 were generally rejected. Marco DeFunis had an average on the index of 76.23, placing him the group taken to “committee,” and he was ultimately wait listed.
Students in the minority admissions program were evaluated separately. 36 of the 37 minority applicants had averages below DeFunis, with 30 having averages below 74.5. There were also 48 nonminority applicants admitted with averages below DeFunis, half of them veterans, another group receiving special consideration.
Justice Douglas ultimately concluded that it was not clear that the admissions policy of the University of Washington Law School violated the Equal Protection Clause by excluding DeFunis. However, he differed from the Court majority in arguing that the case should be remanded for a new trial to investigate the legitimacy of the minority admissions process that admitted applicants with credentials lower than DeFunis.
Douglas’s dissent raised some larger issues that are still relevant today, both with regard to selective admission and with regard to race-based affirmative action.
The first has to do with institutional discretion regarding admission policies and procedures. Douglas argued that the educational policy choices made by institutions regarding admission should not in ordinary circumstances be a subject for judicial oversight. Subsequent court cases have upheld that principle, and yet that precedent is in jeopardy in the Harvard and UNC cases given the current composition of the Supreme Court.
A second issue is the predictive ability and limitations of testing. The LSAT was a major part of the index used by the law school to sort applicants, with possible exception of applicants in the minority category. Douglas called into question the reliance on testing, in particular asking whether one’s score on the LSAT is predictive of success. He argued that tests “do not have the value that their deceptively precise scoring system suggests.”
The debate over how much value tests add to admission prediction continues today. Do we believe that tests measure the qualities we look for in lawyers (or students), or do we value tests because they give us a number to simplify the evaluation? Do we measure the things we value, or do we value the things we can measure, even imprecisely?
A related philosophical issue is whether the admissions process is designed to reward past performance or to predict future success. Are those the same thing, and if not which of those do test scores measure? Answering that question becomes more complicated when you are talking about professional schools like law or medical school, where predicting future success as a lawyer is not the same thing as predicting future success as a law student.
A third issue involves how to ensure that there is equity in the admissions process. The dean of the Washington Law School talked about wanting a class with a “reasonable representation” of students from a diverse group of ethnic and other backgrounds, making clear that was not the same as a quota. That issue has been an on-going discussion, with the University of Texas in the 2016 Fisher case talking about the desire for a “critical mass” of students from different groups.
That concern is elevated given the history of race in this country, a history that most of us believe is far from resolved. Douglas pointed out that “The years of slavery did more than retard the progress of blacks. Even a greater wrong was done the whites by creating arrogance instead of humility and by encouraging the growth of the fiction of a superior race.” He also pointed out that, “A segregated admissions process creates suggestions of stigma and caste no less than a segregated classroom” and “One other assumption must be clearly disapproved; that blacks or browns cannot make it on their own individual merit.”
But does it matter how one goes about achieving a goal that is laudable? Should students have been designated as “minority” students solely based on their answers to an optional application question?
One of the meta issues in ethics is whether the end justifies the means, and that applies here. In his DeFunis dissent Douglas suggested that the law school was in effect conducting dual admission processes, and in the 1978 Bakke case the Supreme Court stated that a separate minority admission process is unconstitutional. Skeptics of race-based affirmative action have alleged that colleges still have quotas, but have learned to use different language.
The final issue raised indirectly by Douglas involved whether colleges should be admitting individuals or a class. Douglas stated of DeFunis, “Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.”
I happen to agree with that sentiment in principle, but it seems almost quaint today. Selective institutions today are looking to craft a class through the admissions process rather than admit deserving individuals, with diversity being one of the institutional priorities. Is that at odds with Douglas’s views in the DeFunis case? I have argued before that much more than race-based admission is on trial in the Harvard case, that admission conventions such as the “best class” paradigm and the idea of holistic admission are also on trial.
Justice William Douglas was seen as the most liberal of the judges on the Supreme Court during his tenure, and yet his views in the DeFunis dissent seem almost conservative in the present day (not conservative in the way the present Court is, if in fact the “conservative” majority on the court is truly conservative). I wonder what that says about the evolution of the debate over race-based affirmative action over the past 50 years. Perhaps we can investigate that in future posts.
The DeFunis case has been largely forgotten. Marco DeFunis ended up practicing law in the Seattle area before dying of a heart attack at age 52. Many of the issues contained in the Douglas dissent should still guide consideration of the issue today.