Affirmative action, which was introduced at the national level by President John F. Kennedy’s Executive Order 10925, called for the creation of the Committee of Equal Employment Opportunity in order to promote access and equity for minorities in programs utilizing federal funds. More specifically, this order directed public officials to “take affirmative action” to eliminate racial discrimination in employment practices.
Educational institutions have relied on affirmative action to provide access to and increase the number of minorities in colleges and universities. Since its implementation, the constitutionality of affirmative action has been challenged vigorously in higher education. Insofar as DeFunis v. Odegaard (1974) was the first case challenging the constitutionality of affirmative action in higher education to reach the Supreme Court, this entry reviews its background and rationale.
Facts of the Case
DeFunis arose when Marco DeFunis, Jr., a White Jewish student of Spanish-Portuguese descent, applied for admission to the state-operated law school at the University of Washington in 1971. While the law school received around 1,600 applications, admission officials chose to limit admissions to 150 students.
During the time in which the plaintiff applied to the law school, its admissions committee calculated all applicants’ predicted first-year averages (PFYAs) using their scores on the Law School Admissions Test (LSAT) as well as their junior- and senior-year grade point averages from undergraduate school. The admissions committee assigned less weight to the minority students’ PFYA scores and reviewed their applications separately from those of other applicants. Further, the admissions committee accepted minority students whose PFYA scores were lower than those of their White counterparts. Admittedly, the committee did not establish quotas; it sought the inclusion of a reasonable number of minority students.
At the time when the plaintiff’s application was under review, 37 minority students were admitted. Of these, 36 had PFYA scores below the plaintiff’s, and 30 had scores that were below the minimal threshold needed to meet the law school’s admission requirements. Of the 37, only 18 enrolled in the law school. Forty-eight nonminorities were admitted, who also had PFYA scores below the plaintiff. Another 23 of these were veterans, and 25 were admitted presumably for other factors despite their low PFYA scores.
Initially, the plaintiff was placed on a waiting list and subsequently notified that he was denied admissions to the law school. Consequently, the plaintiff filed a suit against the law school claiming that its admissions policy violated the Equal Protection Clause of the Fourteenth Amendment. A state trial court agreed with the plaintiff and ordered officials to admit him in the fall of 1971. However, after the plaintiff started his studies, the Supreme Court of Washington reversed in favor of the law school, explaining that its affirmative action program was a constitutionally permissible admissions tool justified by several state interests. The court found that the law school’s affirmative action program served the state’s interest in helping to diversify public education. The court thought that the law school’s affirmative action policy would enable officials to attain a racially diverse student body while also helping to alleviate the shortage of minority attorneys, prosecutors, judges, and public officials.
The Supreme Court’s Ruling
As the plaintiff sought further review at the U.S. Supreme Court, he was permitted to remain in school pending the outcome of his appeal. When the Court heard the case, in a five-to-four per curiam judgment, meaning that none of the justices was named as its author, it vacated the case as moot, because DeFunis was in his last quarter of law school, and law school officials decided that regardless of the final outcome of the case, he would be able to complete his studies. In so ruling, Court essentially sidestepped the merits of the case, discussing only the standards that it applied in evaluating whether to accept the suit, and remanded it for further consideration.
In the first of two dissents, Justice Douglas argued that the Supreme Court should have addressed the substance of the plaintiff’s claim in light of the importance of the equity issues that it presented. Similarly, the second dissent, written by Justice Brennan and joined by Justices Douglas, White, and Marshall, maintained that insofar as it was possible that the student might not have completed his studies, the Court should have examined the issue in detail.
On remand, the Supreme Court of Washington rejected the plaintiff’s attempt to intervene on behalf of a group of other applicants who alleged that they were denied admission to the law school in favor of less qualified minorities. The court was of the opinion that the plaintiff should not have been allowed to become involved in the litigation insofar as he lacked the ability to represent the interests of the class properly. The court asserted that any interests that the plaintiff might have had in such a case would have been too small, because he had already graduated from law school. Furthermore, the court reexamined its previous judgment, concluding that in light of its broad public import, it was necessary to reinstate its initial order upholding the law school’s admissions policy that employed affirmative action.
Impact of the Ruling
The net result of DeFunis is that while the Supreme Court basically deferred having to address the constitutional merits of affirmative action admissions policies in higher education, it paved the way for additional litigation that did get to the heart of the matter. Consequently, these later cases, most notably Regents of the University of California v. Bakke (1978), wherein a plurality of the Court upheld the use of an affirmative action admissions plan in a case involving a medical school; Gratz v. Bollinger (2003), in which the Court upheld such a plan in a law school; and Grutter v. Bollinger (2003), wherein it invalidated a plan in undergraduate admissions, have set the parameters for the use of affirmative action in student admissions in colleges and universities.
Robert T. Palmer
See also equal protection analysis
- Eckes, S. (2008). Grutter v. Bollinger. In C. J. Russo (Ed.), Encyclopedia of education law (Vol. 1, pp. 412–414). Thousand Oaks, CA: Sage.
- Office of Affirmative Action, Equal Opportunity and Diversity. (n.d.). Glossary of affirmative actions terms. Retrieved December 14, 2005, from http://www.uri.edu/affirmative_action/definitions.html
- Russo, C. J., & Thro, W. E. (2009). Higher education implications of Parents Involved in Community Schools. Journal of College & University Law, 35, 239–270.
- DeFunis v. Odegaard, 416 U.S. 312 (1974), on remand, 514 P.2d 438 (Wash. 1974).
- Gratz v. Bollinger, 539 U.S. 244 (2003).
- Grutter v. Bollinger, 539 U.S. 306 (2003).
- Regents of the University of California v. Bakke, 438 U.S. 265 (1978).