The 'Reverse Discrimination' Backlash

Minority enrollment at American four-year colleges and universities has nearly doubled in the past decade, mostly as a result of the conscious efforts by admissions offices to recruit and include minorities.

The push to increase minority enrollment began in the months following the death of Martin Luther King, but admissions officers soon found that the only way to solve the problems of low minority enrollment in the short run was to give them preferential treatment in the admissions process.

After years of incremental progress in token minority admissions, colleges began full-scale programs to bring minority enrollment to the level in the overall population. Whether rigid or merely implicit, these programs took the shape of a quota system for minority admissions. This practice has provoked an outcry of "reverse discrimination" from whites who say blacks and other minorities don't have to work as hard to get into college.

Until this year, the charge of reverse discrimination has been kept under the table and has not swayed universities from continuing to give preferential treatment to minority applicants. But the Supreme Court finally opened the Pandora's box last November when it agreed to hear a challenge to the system of preferential treatment during its current session.

The test case involves a white graduate of the University of Washington, Marco DeFunis Jr., who was denied admission to the Washington law school. DeFunis graduated magna cum laude in 1970 with a 3.62 average and was a member of Phi Beta Kappa. His grades for his junior and senior years, combined with his LSAT score, were just below the level which would have won him automatic admission.


DeFunis subsequently discovered that his academic record was higher than over one-fourth of the admitted students. Of the 150 law students accepted, 44 were minority students and 38 of them had over-all records lower than DeFunis's.

DeFunis filed suit in Washington Superior Court, charging that the "arbitrary and capricious action" of the University of Washington had deprived him of equal protection of the law, guaranteed by the 14th amendment. He sought admission to the entering law school class and $50,000 damages.

The University of Washington told the court that during the application process blacks and other non-white minorities were considered separately. DeFunis maintained that while all minority applicants were automatically rated as "deprived" and given preferential treatment, there was no attempt to determine nor any consideration given to the economic status of any white applicants.

Judge Lloyd Shorett ruled that DeFunis had been discriminated against by the law school's quota system for minorities and ordered the University of Washington Law School to enroll DeFunis, but denied him damages. In his decision, Shorett said that law school enrollment methods discriminated against whites because minority applications were set aside and considered separately by two black members of the admissions committee--a black student member and a faculty member involved in minority programs.

"When the recommendations went to the full committee, minority applicants had been treated more favorably than others," Shorett said. While the Judge said he sympathized with the university's intent to enroll more minority students, he added that "the Constitution is color-blind."

The law school admitted DeFunis, but appealed the ruling to the Washington Supreme Court. The supreme court reversed the decision of the lower court, maintaining that the law school had the right to decide whether its over-all quality would be improved by a larger percentage of minority students. The 6-2 decision held that weighing race as a factor in admissions is not arbitrary or capricious and that as long as the school's purpose was to bring races together, "the preferential minority admissions policy is not a form of invidious racial discrimination which is unconstitutional."

DeFunis and his lawyers from the Anti-Defamation League of B'nai B'rith took their case to the United States Supreme Court. A stay granted by Justice William O. Douglas had kept DeFunis in law school after the state supreme court's reversal, and the Supreme Court then decided to hear the case beginning on February 26.

The case now has aroused the interest of many college administrators, educators and lawyers because they believe that the ultimate decision by the high court could be as important to minority access to higher education as the Brown v. Board of Education desegration ruling of 1954 was for public school education. And many observers say that the ruling could affect not only non-white minority admissions procedures, but those for sexual, ethnic and socio-economic groups as well. Affirmative action plans involving hiring practices could also be altered by the Court ruling.

Harvard is among at least 25 parties who filed amicus curiae (friend of the court) briefs with the Court last week in defense of universities' efforts to reduce disadvantages suffered by minorities in educational and professional opportunities by preferential treatment.

Most of the briefs were prepared by groups such as the American Association of Law Schools, the American Bar Association, the NAACP legal defense fund, the Civil Liberties Union and defense funds for several minority groups. Besides Harvard, the only other universities known to have offered opinions to the Court are Rutgers and Cornell.

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