The DeFunis Case: The Right to Go to Law School

DeFunis versus Odegaard and the University of Washington: The University Admissions Case, The Record

edited by Ann Fagan Ginger
Oceana Publications, 3 vols pp., $70.00


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,…

This is exclusive content for subscribers only.
Get unlimited access to The New York Review for just $1 an issue!

View Offer

Continue reading this article, and thousands more from our archive, for the low introductory rate of just $1 an issue. Choose a Print, Digital, or All Access subscription.

If you are already a subscriber, please be sure you are logged in to your account.