DeFunis, defunct.

• Author: Chen, Jim
• Position: Race-based law school admissions

November 1998 marks the twenty-fifth anniversary of the Supreme Court's initial decision to accept a case presenting the question of race-conscious university admissions. This silver jubilee merits three cheers(1) for DeFunis v. Odegaard(2)--and a moment of silence upon its passing. Call it three ovations and a funeral.

Marco DeFunis, Jr., was initially denied admission to the 1974 class of the University of Washington Law School. Like many other law schools, Washington gave presumptive weight to an index based on undergraduate grades and LSAT scores.(3) The school's admissions procedures provided, however, that "all files of `minority' applicants"--defined as "Black Americans, Chicano Americans, American Indians and Philippine Americans," but not other Asian Americans--be "considered by the full [admissions] committee" without regard to an individual applicant's grades or scores.(4) Upon finding that the minority admissions program resulted in the admission of students less qualified than DeFunis, the King County Superior Court ordered his admission to the class entering in September 1971.(5)

The Supreme Court of Washington reversed. It held, first, "that the consideration of race as a factor in the admissions policy of a state law school is not a per se violation of the equal protection clause."(6) Rejecting the argument that the racial classification at work "should be considered `benign,'" the court required "the law school to show that its consideration of race in admitting students is necessary to the accomplishment of a compelling state interest."(7) In the end, however, the court upheld the minority admissions program, fearing that a contrary decision might "perpetuate[] indefinitely" the law school's state of "minority underrepresentation."(8)

The Supreme Court granted certiorari on November 19, 1973.(9) The threat to educational affirmative action was palpable. According to one journalistic account, "all nine Justices leaned [initially] toward holding that ... fixed racial quotas" in university admissions "were unconstitutional."(10) Even Justice Marshall feared that "uphold[ing] [a] fixed quota for minorities might create an unfortunate precedent which could be used eventually to exclude minorities."(11) Another account reports that the Justices were deeply divided and that Justice Brennan had amassed four votes to permit some consideration of race in university admissions.(12) A showdown over affirmative action seemed unavoidable; neither the parties' briefs nor those of twenty-six sets of amici identified a serious jurisdictional defect in the case.(13)

The Court eventually decided the case on mootness grounds. DeFunis had all but finished his studies, and the law school asserted that not even an adverse decision would prevent his graduation.(14) What had begun as a debate among the Justices on the merits of affirmative action turned into a jurisdictional battle.(15) The original and the "strongest" proponent "of the mootness approach,"(16) Justice Stewart "offered to write a per curiam declaring the case moot."(17) As President Nixon's four appointees--the Chief Justice and Justices Blackmun, Powell, and Rehnquist--acquiesced in this compromise, "[e]ven the liberals breathed a sigh of relief that the case was gone."(18) (Relieved though they might have been, the liberals took pains to protest the mootness decision.)(19)

On April 23, 1974, the Court vacated the judgment below and remanded the case to the state supreme court.(20) On remand a fractured Washington Supreme Court denied DeFunis's motion to designate the case a class action(21) and instead reinstated its original judgment.(22) A few interested observers took quiet pleasure in how the case ended not with a bang but a whimper.(23)

A mere four years later, the Bakke decision(24) fulfilled the DeFunis dissenters' prediction that educational affirmative action would "inevitably return" to the Court.(25) Whereas DeFunis had allowed an aggrieved white student to graduate without addressing the merits of affirmative action, Bakke approved race-conscious admissions in the name of "diversity" even as it ordered its plaintiff admitted to his chosen university. Although the Court has never revisited the question of affirmative action in a university setting,(26) an entire generation of legal commentators has devoted more attention to Bakke than perhaps any other Supreme Court decision.(27)

Over the past two decades, DeFunis has gotten lost in the constitutional cascade that followed Bakke. Legal scholars have obsessed over the affirmative action guidelines outlined in Bakke and ignored the Court's close call in DeFunis. Such are the perils of an academic tradition that favors grand theory over less glamorous questions of practice, procedure, and pragmatic consequences.(28) Then again, to the extent that Bakke is "the Kama Sutra of educational affirmative action,"(29) why would--or should--scholars waste any time on the relatively pedestrian decision in DeFunis? Understandable though the preference for Bakke over DeFunis might be, it has blinded us to three noteworthy aspects of the DeFunis decision. A single word expresses each of these: mootness, Realpolitik, and honesty.

Although DeFunis is regarded as a paragon of the passive virtues,(30) the sheer complexity of its relationship with mootness doctrine prevents us from treating it as a clear triumph of jurisdiction over substance. With the passage of time, DeFunis has taken its place in mootness doctrine as a case of relatively modest stature. The Court conceded that the law school's "voluntary cessation of [its] admissions procedures"(31) would not moot the case, a position well grounded in prior and later cases.(32) DeFunis does appear, especially when viewed in conjunction with a 1973 case raising issues of mootness,(33) to have represented a transition in the Court's thinking on cases "capable of repetition, yet evading review." Earlier cases waived mootness objections whenever the defendant's alleged misconduct might harm any member of the public.(34) Later cases insisted, in accordance with DeFunis and Roe v. Wade,(35) that the recurring injury befall the plaintiff.(36) Finally, the Court's chosen remedy in DeFunis--a decision to vacate and to remand for further proceedings in state courf(37)--has since fallen out of favor. The Court now prefers to dismiss cases that become moot while on review from a state court, thereby preserving the underlying state court...