DEFUNIS v. ODEGAARD 416 U.S. 312 (1974)

DeFunis challenged the constitutionality of the University of Washington law school's use of racial preferences in admitting students. The case was expected to be a decisive test for affirmative action programs in higher education. Instead, by a 5–4 vote, the Supreme Court held that the case was moot, because the law school would graduate DeFunis at the end of the current term, however the case might be decided. Cynics, remembering how the Court had recently dealt with the argument of mootness in roe v. wade (1973), suggested that the majority had been readier to reach the merits of the abortion issue in Roe than it was to face the problem presented by DeFunis.

Justice william o. douglas, who thought the case was not moot, wrote an opinion on the merits. He concluded that the law school had denied DeFunis, a nonminority applicant, the equal protection of the laws by awarding a preference solely on the basis of race. Justice Douglas commented that minority applicants should be evaluated specially to avoid cultural bias in admissions, but he did not explain how a school could evaluate minority applicants separately without devising a scale to measure them against other applicants. Such a scale would necessarily involve setting goals for minority representation. DeFunis was Justice Douglas's last chance to speak to these issues, which returned to the Court in regents of university of california v. bakke (1978), after his retirement.

Kenneth L. Karst
(1986)