DeFunis versus Odegaard and the University of Washington: The University Admissions Case, The Record
In 1945 a black man named Sweatt applied to the University of Texas Law School, but was refused admission because state law provided that only whites could attend. The Supreme Court declared that this law violated Sweatt’s rights under the Fourteenth Amendment to the United States Constitution, which provides that no state shall deny any man the equal protection of its laws.1 In 1970 a Jew named DeFunis applied to the University of Washington Law School; he was rejected although his test scores and college grades were such that he would have been admitted if he were black or Filipino or a Chicano or an American Indian. DeFunis asked the Supreme Court to declare that the Washington practice, which offered less exacting standards to minority groups, violated his rights under the Fourteenth Amendment as well.2
The Washington admissions procedures were complex. Applications were divided into two groups. The majority—those not from the designated minority groups—were first screened so as to eliminate all applicants whose predicted average, which is a function of college grades and aptitude test scores, fell below a certain level. Majority applicants who survived this initial cut were then placed in categories that received progressively more careful consideration. Minority group applications, on the other hand, were not screened, but all received the most careful consideration by a special committee consisting of a black law professor and a white professor who had taught in programs to aid black law students. Most of the minority applicants who were accepted in the year in which DeFunis was rejected had predicted averages below the cut-off level, and the law school conceded that any minority applicant with his average would certainly have been accepted.
The DeFunis case split those political action groups that have traditionally supported liberal causes, as Ann Fagan Ginger’s useful collection shows. The B’nai B’rith Anti-Defamation League and the AFL-CIO, for example, filed briefs as amici curiae in support of DeFunis’s claim, while the American Hebrew Women’s Council, the UAW, and the UMWA filed briefs against it.
These splits among old allies demonstrate both the practical and the philosophical importance of the case. In the past liberals held, within one set of attitudes, three propositions: that racial classification is an evil in itself; that every person has a right to an educational opportunity commensurate with his abilities; and that affirmative state action is proper to remedy the serious inequalities of American society. In the last decade, however, the opinion has grown that these three liberal propositions are in fact not compatible, because the most effective programs of state action are those that give a competitive advantage to minority racial groups.
That opinion has, of course, been challenged. Some educators argue that benign quotas are ineffective, even self-defeating, because preferential treatment will reinforce the sense of inferiority that many blacks already have. Others make a more general objection. They argue that any racial discrimination, even for the purpose of benefiting minorities, will in fact harm those minorities, because prejudice is fostered whenever racial distinctions are tolerated for any purpose whatever. But these are complex and controversial empirical judgments, and it is far too early, as wise critics concede, to decide whether preferential treatment does more harm or good. Nor is it the business of judges, particularly in constitutional cases, to overthrow decisions of other officials because the judges disagree about the efficiency of social policies. This empirical criticism is therefore reinforced by the moral argument that even if reverse discrimination does benefit minorities, and does reduce prejudice in the long run, it is nevertheless wrong because distinctions of race are inherently unjust. They are unjust because they violate the rights of individual members of groups not so favored, who may thereby lose a place as DeFunis did.
DeFunis presented this moral argument, in the form of a constitutional claim, to the courts. The Supreme Court did not, in the end, decide whether the argument was good or bad. DeFunis had in fact been admitted to the law school after one lower court had decided in his favor, and the law school said that he would be allowed to graduate however the case was finally decided. The Court therefore held that the case was moot and dismissed the appeal on that ground. But Mr. Justice Douglas disagreed with this neutral disposition of the case: he wrote a dissenting opinion in which he argued that the Court should have upheld DeFunis’s claim on the merits.
Many universities and colleges have taken Justice Douglas’s opinion as handwriting on the wall, and have changed their practices, in anticipation of a later Court decision in which his opinion prevails. In fact, his opinion pointed out that law schools might achieve much the same result as the University of Washington admissions procedures by using a more sophisticated policy. A school might stipulate, for example, that applicants from all races and groups would be considered together, but that certain minority applicants’ aptitude tests would be graded differently, or given less weight in overall predicted average, because experience had shown that standard examinations were for different reasons a poorer test of the actual ability of these applicants. But if this technique is used deliberately to achieve the same result, it is devious, and it remains to ask why the candid program the University of Washington used was either unjust or unconstitutional.
DeFunis plainly has no constitutional right that the state provide him a legal education of a certain quality. His rights would not be violated if his state did not have a law school at all, or if it had a law school with so few places that he could not win one on intellectual merit. Nor does he have a right to insist that intelligence be the exclusive test of admission. Law schools do rely heavily on intellectual tests for admission. That seems proper, however, not because applicants have a right to be judged in that way, but because it is reasonable to think that the community as a whole is better off if its lawyers are more intelligent. Intellectual standards are justified, that is, not because they reward the clever, but because they seem to serve a useful social policy.
Law schools sometimes serve such policy better, moreover, by supplementing intelligence tests with other sorts of standards: they sometimes prefer industrious applicants, for example, to those who are brighter but lazier. They also serve special policies for which intelligence is not relevant. The University of Washington law school, for example, gave special preference not only to the minority applicants but to veterans who had been at the school before going to war; neither DeFunis, nor any of the briefs submitted in his behalf, complained of that preference.
DeFunis does not have an absolute right to a law school place, or a right that only intelligence be used as a standard for admission. He says he nevertheless has a right that race not be used as a standard, no matter how well a racial classification might work to promote the general welfare or to reduce social and economic inequality. He does not claim, however, that he has this right as a distinct and independent political right that is protected by the Constitution specifically, like his right to freedom of speech and religion. The Constitution does not condemn racial classification directly, as it does condemn censorship or the establishment of a religion. DeFunis claims that his right that race not be used as a criterion of admission follows from the more abstract right of equality that is protected by the Fourteenth Amendment, which provides that no state shall deny to any person the equal protection of the law.
But the legal arguments made on both sides show that neither the text of the Constitution nor the prior decisions of the Supreme Court decisively settle the question whether, as a matter of law, the equal protection clause makes all racial classifications unconstitutional. The clause makes the concept of equality a test of legislation, but it does not stipulate any particular conception of that concept.3 Those who wrote the clause intended to attack certain consequences of slavery and racial prejudice, but it is unlikely that they intended to outlaw all racial classifications, or that they expected that this would be the result of what they wrote. They outlawed whatever policies would violate equality, but left it to others to decide, from time to time, what that means. There cannot be a good legal argument in favor of DeFunis, therefore, unless there is a good moral argument that all racial classifications, even those that make society as a whole more equal, are inherently offensive to an individual’s right to equal protection for himself.
There is nothing paradoxical, of course, in the idea that an individual’s right to equal protection may sometimes conflict with an otherwise desirable social policy, including the policy of making the community more nearly equal overall. Suppose a law school were to charge a few middle-class students, selected by lot, double tuition in order to increase the scholarship fund for poor students. It would be serving a desirable policy—equality of opportunity—by means that violated the right of the students selected by lot to be treated equally with other students who could also afford the increased fees. It is, in fact, part of the importance of DeFunis’s case that it forces us to acknowledge the distinction between equality as a policy and equality as a right, a distinction that political theory has virtually ignored. He argues that the University of Washington violated his individual right to equality for the sake of a policy of greater equality overall, in the same way that double tuition for arbitrarily chosen students would violate their rights for the same purpose.
We must therefore concentrate our attention on that claim. We must try to define the central concept on which it turns, which is the concept of an individual right to equality made a constitutional right by the equal protection clause. What rights to equality do citizens have as individuals which might defeat programs aimed at important economic and social policies, including the social policy of improving equality overall?
There are two different sorts of rights they may be said to have. The first is the right to equal treatment, which is the right to an equal distribution of some opportunity or resource or burden. Every person, for example, has a right to an equal vote in a democracy; that is the nerve of the Supreme Court’s decision that one man must have one vote even if a different and more complex arrangement would better secure the collective welfare. The second is the right to treatment as an equal, which is the right, not to receive the same distribution of some burden or benefit, but to be treated with the same respect and concern as anyone else. If I have two children, and one is dying from a disease that is making the other uncomfortable, I do not show equal concern if I flip a coin to decide which should have the remaining dose of a drug. This example shows that the right to treatment as an equal is fundamental, and the right to equal treatment derivative. In some circumstances the right to treatment as an equal will entail a right to equal treatment, but not, by any means, in all circumstances.
Sweatt v. Painter, 339 US 629, 70 S.Ct. 848.↩
DeFunis v. Odegaard, 94 S.Ct. 1704 (1974).↩
See my "The Jurisprudence of Richard Nixon," The New York Review of Books, May 4, 1972.↩