Monday, May. 06, 1974

Hints on Reverse Bias

Marco DeFunis had every reason to think he was about to write his name large into the lawbooks. Denied entry to the University of Washington Law School in 1971 while blacks and other minority students were admitted under special lower academic requirements, DeFunis filed suit. He was admitted to the school under court order while the case made its leisurely way up to the U.S. Supreme Court. By whatever name--reverse discrimination, affirmative action or quota system--the emotional issue argued by DeFunis, a white, was whether blacks and others as a class could constitutionally be given preferential treatment.

The case attracted such wide interest that 26 friend-of-court briefs were filed by interested groups. Universities, labor unions, corporations and others are all under pressure to make more room for minorities. The difficulties of doing so without violating the rights of other applicants were crystallized by the confrontation between DeFunis and the University of Washington.

The legal process took so long though that third-year student DeFunis was scheduled to graduate this spring no matter how the Supreme Court ruled. To the disappointment of the braced opponents, five of the Justices seized on this factual quirk and declared the case moot because DeFunis' law-school status no longer presented a controversy. The minority contended that the court was really "straining to rid itself of this dispute."

Recast Approach. Even if it were, delaying tough constitutional questions--allowing an issue to "mature"--is a familiar approach in the High Court. Virtually all authorities agree that some degree of uncertainty, even if it means confusion and inequality, is preferable to hard law written without benefit of sufficient experience, study, lower-court opinions and the like. Moreover, the court's nonaction may provide an opportunity to cool the issue considerably.

In an unusually thorough minority opinion, Justice William Douglas, writing only for himself, stated clearly that the 14th Amendment's Equal Protection clause "commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized." But the senior Justice made clear that the law school has broad discretion to give any individual applicant preference, so long as it is granted without respect to race. The majority may not go along, but what Douglas seemed to be suggesting was that if the school were to recast its admissions approach--for instance, by adding points to the law-board scores of any applicants who might be considered victims of the test's cultural bias--it could avoid the entire constitutional discrimination problem. The effect would still be to help minority students who might otherwise fail to meet the entrance requirements.

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