“”No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth Amendment to the US Constitution.
In 1974, President Richard Nixon resigned one-step ahead of impeachment by the House of Representatives; Gerald Ford became president; the Symbionese Liberation Army kidnapped Patricia Hearst, the Godfather II won best picture; and Pong was a popular video game. In the same year, the DeFunis case reached the US Supreme Court.
In 1971, Marco DeFunis applied to the University of Washington Law School. DeFunis is white and claimed he was denied admission as a consequence of the school’s disparate treatment of applicants based on race. Defunis sued the law school asserting he had been denied equal protection of the law under the Fourteenth Amendment. The case was particularly interesting in that the University of Washington never had a history of discrimination against minorities, so there was no question of providing compensatory admissions to minorities.
While the case was being decided, DeFunis was admitted to the law school. By the time the case percolated up to the Supreme Court, DeFunis was within one semester of graduation. The University of Washington agreed that DeFunis would be allowed to complete his studies regardless of the outcome of the case. The majority of the Court ruled the case “moot” and therefore declined to render a decision on the merits of the case. The result was that the practice of preferential treatment based on race was allowed to grow despite uncertain legal limitations.
The classically liberal Justice William O. Douglas dissented on the decision not to review the case. He wrote, “…in endeavoring to dispose of this case as moot, the Court clearly disserves the public interest. The constitutional issues which are avoided today concern vast numbers of people, organizations, and colleges and universities, as evidenced by the filing of twenty-six amicus curiae briefs.”
Four years later, the Supreme Court could not so easily avoid its duties. Allan Bakke had twice been denied admission to the University of California-Davis Medical School. Bakke argued that a program that reserved 16 out of 100 seats for minority students violated the Fourteenth Amendment and the 1964 Civil Rights Act. In 1978, the Supreme Court ruled 5-4 that the quotas used by the University of California were indeed illegal. However favorable the result was for Mr. Bakke, the decision did not settle matters. Justice Lewis Powell, writing for the majority, left open a small crack through which a deluge of racial preferences in university admissions have flooded through. While passionately condemning systematic racial preferences, he suggested if two candidates where comparable, tilting toward the minority candidate would be permissible given the states interest in a varied enrollment. Of course, this incremental help has, in practice, degenerated into policies that are little different from quotas.
Those who implement racial preferences on campuses are so uncertain as to the legality of their position that they hide behind euphemisms and deception. For the longest time, the University of Michigan denied that it used race as a criteria for admissions. Information obtained via the Michigan Freedom of Information Act and suits put the facts of the matter to rest. According to Carl Cohen professor of philosophy at the University of Michigan, “sworn depositions revealed the number of [admission] points awarded for minority status … was decided upon by statistically how many points would be needed to insure” that each entering class consisted of 10-12% minority students.
The university has been reduced to making two contradictory claims: the preferences they award minorities are small and only affect decisions in a few close cases and without such preferences there would be drastic reductions in the number of minorities enrolled.
Any state activity that treats people differently based on race must undergo strict judicial scrutiny. Not only must the state must have a compelling interest in engaging in such discrimination, but the discrimination must be very narrowly tailored to addressing this interest. Racial preferences as commonly practiced by universities do not come close to meeting these tests.
The University of Michigan has presented heavily disputed evidence that students benefit academically from a diverse student body and therefore the state has a strong interest in seeking one. However, even if this could be unequivocally demonstrated, is not likely that discriminating against non-minorities is a narrowly tailored solution to the problem.
To understand why, imagine a different fact situation. Let us assume that it could be proven without serious doubt that segregated classrooms helped the pedagogical process. Would that be sufficient to justify the ugly practice of treating people differently based on skin color? Most certainly not.
Over thirty years since DeFunis was first denied admission to the University of Washington Law School, the US Supreme Court again seems on a collision course with this issue. The Court has agreed to hear a class action suit against the University of Michigan this term brought by plaintiffs Jennifer Gratz and Patrick Hamacher. However, the Court has shifted to the right since the Bakke case. Justices William Rehnquist and John Paul Stevens are the only two judges remaining who participated in the Bakke decision.
On the present Court, there are five strong voices against racial preferences, Justices Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Conner. Those five are enough to end racial preferences in academic admissions. In handicapping the court decision in this case, one would have to bet that in the end, Justice Stevens would also find against racial preferences, though he is certainly a wild card. Justices David Souter, Ruth Bader Ginsburg, and Stephen Breyer can be counted on to engage in the mental gymnastics of arguing that the words of the Fourteenth Amendment and the Civil Rights Act do not mean what they plainly say and racial preferences are legal. The prediction here is that racial preferences, at least as practiced by the University of Michigan, will be ruled illegal 5-4 or 6-3. Moreover, if Justices Scalia or Thomas write the majority opinion, the opinion will be an unequivocal, sweeping, and stinging renunciation of the state-sponsored use of race to separate people, regardless of how benevolent the motive.