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ARTICLES
PREFERENTIAL ADMISSION PROGRAMS IN
PROFESSIONAL SCHOOLS: DEFUNIS,
BAKKE, AND GRUTTER
GabrielA. Moens*
I. INTRODUCTION
On May 14, 2002 the United States Court of Appeals for the
Sixth Circuit rendered an important decision concerning the
constitutionality of the University of Michigan Law School's
consideration of race and ethnicity in its admissions decisions.
The court ruled in Grutter v. Bollinger' that the School's
admissions program, which aimed at the achievement of a diverse
student body, was constitutional.2 The court's decision viewed
the achievement of a diverse student body as a compelling state
3
interest under Regents of the University of California v. Bakke.
The School's admissions policy describes "a commitment to racial
and ethnic diversity with special reference to the inclusion of
students from groups which have been historically discriminated
against, like African-Americans, Hispanics and Native
Americans, who without this commitment might not be
represented in our student body in meaningful numbers."4
However, "'the Law School's commitment to such diversity was
not intended as a remedy for past discrimination, but as a means
of including students who may bring a different perspective to the
Law School."'" Nevertheless, the Interveners contended that the
interest in remedying past discrimination constitutes an
*Garrick Professor of Law, The University of Queensland, Australia. Visiting

Professor of Law, Loyola University New Orleans School of Law.
1. Grutter v. Bollinger, 2002 FED App. 0170P (6th Cir.), 288 F.3d 732, cert.
granted, 123 S. Ct. 617 (2002).
2. Id. at 751.
3. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
4. Grutter, 288 F.3d at 737.
5. Id.
412 Loyola Law Review [Vol. 48
additional6 justification for the School's consideration of race and

ethnicity.
In evaluating applicants for admission, the University of
Michigan Law School uses a composite of the applicant's Law
School Admissions Test and undergraduate grade-point average.7
But, in addition, the School also considers "soft" variables, which
are used as possible bases for diversity admissions.8 The School's
administration stressed that it did not reserve seats for the
admission of under-represented minority students, but instead
sought to enroll a "meaningful number, or a 'critical mass,' of
under-represented minority students."9 According to the School's
Director of Admissions, "critical mass is a number sufficient to
enable under-represented minority students to contribute to
classroom dialogue without feeling isolated."'10
In an attempt to evaluate the Sixth Circuit's judgment, it is
timely to revisit two cases, which are highly relevant to such an
evaluation: Bakke" (involving an applicant for admission to
medical school) and DeFunis2 (involving an applicant for
admission to law school). It is the purpose of this article to
review these critical cases and to indicate their importance for an
understanding and evaluation of the court's judgment in Grutter.
In this review, I will assess the claim that the achievement of a
diverse student body justifies a consideration of race and
ethnicity in admissions to professional schools. I will also
consider whether remedying past discrimination constitutes a
valid additional justification for considering race and ethnicity in
the admissions process.
II. TWO CONCEPTIONS OF MERIT
As Grutter indicates, the question of whether an applicant's
race or ethnicity may be considered in order to achieve a diverse
6. Grutter, 288 F.3d at 735.

7. Id. at 736.
8. Id. ("soft variables" include, among other variables, the quality of the
undergraduate institution and the difficulty of the undergraduate degree, leadership,
work experience, and unique talents or interests).
9. Id. at 737.
10. Id.
11. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
12. DeFunis v. Odegaard, 507 P.2d 1169 (Wash. 1973), vacated by 416 U.S. 312
(1974) (per curiam).
2002] Preferential Admission Programs 413
student body and to overcome the under-representation of 13

minority groups in professional schools is highly controversial.
The controversy arises from the fact that, in the context of
professional schools, efforts to increase minority representation
may result in the displacement of applicants who belong to the
White majority because these schools often have a fixed
enrollment. Typically, professional schools have increased the
number of minority students by introducing preferential
admission programs. Preferences are accorded to members of
designated minority groups either by maintaining a separate
admissions program for majority and minority applicants, or by
reserving places for a number of minority students. The former
type of preference is used in DeFunis v. Odegaard," 4 and the
latter type is found in Regents of the University of California v.
15
Bakke.
The DeFunis and Bakke cases illustrate the ambiguity in the

usage of the term "merit" and the failure of the courts to agree on
either of the two relevant conceptions of "merit." 6 In its first
conception, "merit" is described as the possession, by a candidate
for admission to a professional school, of relevant individual
characteristics, including race and ethnicity, which are needed by
the school to fulfill its educational function. In contrast, "merit"
in its second sense is conceived as the possession of
characteristics, which have the capacity to produce "desirable"
social outcomes or results, for example, representation- of
13. Compare Hopwood v. Texas, 78 F.3d 932, 948 (5th Cir. 1996) ("the use of race
to achieve a diverse student body, whether as a proxy for permissible characteristics,
simply cannot be a state interest compelling enough to meet the steep standard of
strict scrutiny"), and Hopwood v. Texas, 236 F.3d 256 (5th Cir. 2000) ("Inasmuch as
the Hopwood II panel's ruling on diversity did not rise to the level of clear error, the
law of the case doctrine bars our revisiting or disregarding that decision today."),
with Smith v. Univ. of Wash. Law School, 233 F.3d 1188, 1200-01 (9th Cir. 2000) ("it
ineluctably follows that the Fourteenth Amendment permits University admissions
programs which consider race for other than remedial purposes, and educational
diversity is a compelling governmental interest that meets the demands of strict
scrutiny of race-conscious measures"), and E. John Gregory, Diversity is a Value in
American Higher Education, But It Is Not a Legal Justification for Affirmative
Action, 52 FLA. L. REV. 929, 931 (2000) (suggesting that accepting the diversity
argument as a legal justification for affirmative action programs imperils individual
liberty).
14. DeFunis, 507 P.2d at 1175-76.
15. Bakke, 438 U.S. at 275.
16. "Merit" as used in this article is the author's definition as it relates to this
article.
minority students in a professional school in accordance with

their numerical strength in society. Membership in a racial or
ethnic group could then, in a specific context, be regarded as
meritorious. Proponents of the second conception of "merit" argue
that its content varies according to the community's needs;
thereby implying that membership in a racial or ethnic group
may, in itself, be a sufficient meritorious qualification for
admission to a professional school. 17 Others argue that such a
view of "merit" would transform a professional school "into a
political instrumentality" 18 and would destroy the principle of
reward according to relevant individual characteristics.
Bakke and DeFunis offer excellent illustrations of the
application of these competing conceptions of merit. For example,
in DeFunis, the majority of the Supreme Court of Washington
argued that group membership in itself is a sufficient
qualification for admission to a professional school.' 9 The
interpretation of the concept of "merit" is at the heart of the
Bakke case as well; but, unlike DeFunis, Bakke appears to opt for
the first conception of merit.2 ° Indeed, while arguing that "race"
may not be used as the only factor in a selection procedure lest
the right to individualized treatment be violated, Justice Powell
insists that race may be considered in the admissions process as a
factor among many other individual attributes.2 '
III. DEFUNIS IN THE COURT
1. THE FACTS OF THE CASE

Marco DeFunis, a White student, was denied admission to
the Law School of the University of Washington, in 1970 and
1971.22 The School had received 1601 applications for the
academic year beginning in September 1971, but only a
maximum of 150 places were allotted to the first year students.2 3
The selection and assessment procedure was most difficult and
17. See, e.g., Kenneth L. Karst & Harold W. Horowitz, Affirmative Action and
Equal Protection, 60 VA. L. REV. 955, 956 (1974).
18. Warren Freedman, Is Race Relevant?: Discriminationin Education Today, 48
N.Y. ST. B.J. 170, 171 (1976).
19. DeFunis, 507 P.2d at 1181.
20. Bakke, 438 U.S. at 311-15.
21. Id. at 317-19.
22. DeFunis v. Odegaard, 416 U.S. 312, 314 (1974) (per curiam).
23. DeFunis, 507 P.2d at 1172.
2002] Preferential Admission Programs
delicate, since most of the applicants did not perform sufficiently

well enough for immediate admission or sufficiently poorly for
summary rejection. Applicants for admission were required to
hold an undergraduate degree and to have taken the Law School
Admission Test (LSAT).2 4 A basic formula was then applied to
the undergraduate record and the LSAT score, which were
combined for each applicant.2" This formula produced a predicted
first year of law school average (PFYA).2 6 The admission process
did not include personal interviews and did not reveal whether an
applicant was poor or affluent.27
Applicants were permitted to indicate their "dominant"
ethnic origin on the application form.2" The Admissions
Committee defined "minorities" to include Black Americans,
Chicano Americans, American Indians and Filipino Americans.2 9
On the basis of the previous year's applicant group, the
Committee decided that the most promising applicants for the
class of 1974 would have predicted first year law school averages
over 77.30 Majority applicants with PFYA's below 74.5 were
received by the Chairman of the Committee and were either
rejected by him or placed in a group for later review by the full
Committee. 3 ' DeFunis's PFYA was 76.23.32 The full Committee,
regardless of the PFYA of the individual applicant, considered all
files of minority applicants.3 3 At no point in the procedure were
34
the records of the majority and minority applicants compared.
Minority applicants were compared directly with one another
only.3 5 When considering applicants, the Committee applied a
University-wide policy, which sought to eliminate the combined
24. DeFunis, 507 P.2d at 1173.

25. Id.
26. Id. Undergraduate results are calculated on a 4.0 scale and the LSAT was
scored on a scale ranging from 200 to 800. A writing test, given on the same day as
the LSAT and administered with it, was scored on a scale of 20 to 80. DeFunis, 416
U.S. at 322 n.1.
27. DeFunis, 507 P.2d at 1173.
28. Id.
29. Id. at 1174.
30. Id. at 1173.
31. Id. at 1173-74.
32. Id. at 1173.
33. DeFunis, 507 P.2d at 1174.
34. Id. at 1176.
35. Id.
Loyola Law Review [Vol. 48
effects of past segregation and discrimination.3 6 This policy was

described in the Admissions Policy Statement as follows:
Because certain ethnic groups in our society have historically
been limited in their access to the legal profession and because
the resulting under-representation can affect the quality of
legal services available to members of such groups, as well as
limit their opportunity for full participation in the
governance of our communities, the faculty recognizes a
special obligation in its admissionspolicy to contribute to the
37
solution of the problem.
Thus, a double set of admission standards was applied, one
for majority members and one for minority members. The
University did not fix an admissions quota for minority students,
but the Committee sought to select "a reasonable proportion of
minority persons, in view of the obligation stated above."3 For
the purpose of determining the number to be admitted specially,
and not as a ceiling on minority admissions generally, the faculty
believed that approximately 15 to 20% was a reasonable
proportion if sufficiently qualified applicants were available.3 9
DeFunis was put in the lowest quarter of a waiting list,
which was used to offset the effects of abnormal attrition, but,
when the attrition appeared to come within normal limits, he was
notified subsequently that he was neither admitted nor on the
waiting list.4" "Out of the 275 students who were given notice of
admission, one hundred and twenty-seven were non-residents of
the State of Washington," eighty-four had lower PFYA's than
DeFunis, and thirty-six of these were minority applicants;
eighteen minority students actually enrolled in the Law School.4 1
DeFunis brought the case in the trial court in order to
compel the University to admit him to the study of law in
September 1971.42 DeFunis contended that procedures and
36. DeFunis, 507 P.2d at 1175.

37. DeFunis v. Odegaard, 416 U.S. 312, 346-47 (1974) (Douglas, J., dissenting)
(emphasis added) (appendix to Justice Douglas's dissent, reproducing excerpts of the
University of Washington Law School's then current admissions policy).
38. Id. at 347.
39. Id.
40. DeFunis, 507 P.2d at 1176.
41. Id.
42. Id. at 1172.
20021 Preferential Admission Programs
criteria employed by the Law School represented invidious

discrimination against him on account of his race, in violation of
the Equal Protection Clause of the United States Constitution."
In particular, he contended that less qualified applicants with
lower PFYA's had been admitted to the study of law solely on the
basis of their race." The trial court ruled that the Law School
had discriminated against DeFunis.4 5 On appeal, the Supreme
Court of Washington reversed the trial court's decision that race
may not be taken into consideration because the Law School had
a compelling interest in producing more and better trained
minority lawyers.4 6
In a per curiam decision, the majority of the members of the
Supreme Court of the United States, to whom DeFunis had
appealed, avoided the main issues as to whether and to what
extent the law school may constitutionally consider the racial or
ethnic background of applicants in the selection of students. 47 It
did this by ruling on the narrowest possible ground applicable to
the action. DeFunis was about to graduate from the University of
43. DeFunis, 413 U.S. at 314. DeFunis also claimed that taxpayers and residents
of the State of Washington should be given preference for admission to the State
University. DeFunis, 507 P.2d at 1187-88. He based his claim on Article 9 §1 of the
Constitution of Washington, which reads as follows: "It is the paramount duty of the
State to make ample provision for the education of all children residing within its
borders." WA. CONST. art. IX, § 1. The trial judge found that there was no State law
entitlement to preferential admission of residents as against non-residents. The
Supreme Court of Washington agreed with the trial Judge's conclusion on this point
and argued that Article 9 § 1 of the Constitution of Washington was only applicable to
the common schools but not to university education. DeFunis, 507 P.2d at 1187-88.
On the other hand, the Supreme Court of the United States has indicated in
Vlandis v. Kline, that ordinary tuition differentials between residents and non-
residents is constitutional. 412 U.S. 441, 453 (1973). Indeed, the Supreme Court
even said that "a State has a legitimate interest in protecting and preserving the
quality of its colleges and universities and the right of its own bona fide residents to
attend such institutions on a preferential tuition basis." Id. at 452-53. With the
support of Vlandis v. Kline, it could be argued reasonably that preferential admission
programs favoring residents and taxpayers would pass constitutional examination.
44. DeFunis, 507 P.2d at 1176.
45. Id. at 1177.
46. Id. at 1181.
47. DeFunis, 416 U.S. at 319.
Because the petitioner will complete his law school studies at the end of the term
for which he has now registered regardless of any decision this Court might
reach on the merits of this litigation, we conclude that the Court cannot,
consistently with the limitations of Art. III of the Constitution, consider the
substantive constitutional issues tendered by the parties.
Id. at 319-20.
Washington Law School and could not be affected by a decision on

the merits of the case, since the law school authorities had given
the guarantee that he would be allowed to finish his last quarter
in the school. 4' Thus, the Supreme Court's decision, rendered on
April 23, 1974, was not based on the Equal Protection Clause, but
on Article III of the United States Constitution, which states that
the judicial power shall extend to "cases" and "controversies"
only. 49 As DeFunis would be awarded a law degree regardless of
the outcome of the appeal, the controversy had ceased to be
"definite" and "concrete" and no longer "touch[ed] the legal
relations of parties having adverse legal interests."5 The
Supreme Court vacated the judgment of the Supreme Court of
Washington and remanded the cause "for such proceedings as by
that Court may be deemed appropriate." 1
2. THE RACiALIETHNIC CLASSIFICATION IN DEFUNIS
In measuring the academic potential of law school
applicants, the Law School relied primarily on the undergraduate
grade-point average and the performance on the LSAT, which
were combined in the PFYA.52 The University stated in the
Admissions Policy Statement that "[flor most applicants the
resulting applicant ranking is the most nearly accurate of all
available measures of relative academic potential."53 However, it
was highly debatable for reasons to be explained hereafter,
whether a selection method for a professional law school, based
on the PFYA's alone, was a good indicator both of the full
potential of an applicant and for all applicants.
The LSAT, which purports to predict how successful the
applicant will be in his first year of law study, consists mainly of
multiple-choice questions.54 If a school wants to test only the
reading and writing abilities of candidates, then the LSAT is
48. See Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-41 (1937).
49. DeFunis, 416 U.S. at 320.
50. Aetna Life Ins. Co., 300 U.S. at 240-41.
51. DeFunis, 416 U.S. at 320.
52. DeFunis, 507 P.2d at 1173.
53. DeFunis, 416 U.S. at 345 (appendix to Justice Douglas's dissent, reproducing
excerpts of the University of Washington Law School's then current admissions
policy).
54. Id. at 328 (Douglas, J., dissenting). For a history on the gradual acceptance
and use of the LSAT test among law schools, see Robert R. Ramsey, Law School
Admissions: Science, Art, or Hunch?, 12 J. LEG. ED. 503 passim (1960).
probably a good indicator since this test is designed especially to

evaluate these skills. However, it is another question whether an
admissions test should only test the reading and writing abilities
of applicants or whether it should also test (by whatever means
available) a candidate's overall ability and potential for the study
of law. As the LSAT consists mainly of multiple-choice questions,
it is limited by the creativity of its designers. As Justice Douglas
remarked in his dissenting opinion, "the student with a better or
more original understanding of the problem than the test-maker
may realize that none of the alternative answers are any good, 55
but there is no way for him to demonstrate his understanding."
Thus, the LSAT cannot test creativity, originality, motivation and
imagination, which are subjective indicators of an applicant's
likelihood to succeed in the study of law.5 6
The Admissions Committee, realizing that mechanical
indicators cannot test the full potential of an applicant, deviated
from the mechanical ranking of students in some cases even
though applicants with PFYA's over 78 were automatically
admitted. Other factors, described in the Admissions Policy
Statement, were applied to some candidates with PFYA's below
78. The Admissions Policy Statement stated that, "in truly
exceptional cases, those in which the numerical indicators clearly
appear to be inaccurate measure of academic potential, 5 7 the
admissions decision may be altered by a consideration of
indicators which serve the objective of admitting the applicants
"who have the best prospect of high quality work at the law
school."" Thus, the Committee admitted implicitly that what
constitutes the best and brightest student body is not determined
exclusively by intelligence measurements but is also determined
by qualities which require an evaluation of a person's
commitment to law study, personal integrity, and capacity to cope
with clients. Although it is not clear how exactly the Admissions
Committee proposed to discover these "truly exceptional cases ...
in which the numerical indicators clearly appear to be ...
inaccurate," 9 it might be speculated that the Admissions
Committee would have used this possibility to rectify what it
perceived to be cultural and racial biases in the LSAT, which
55. DeFunis, 416 U.S. at 328.

56. Id.
57. Id. at 345.
58. Id.
59. Id.
might operate to exclude minority applicants from admission.

For such applicants, the value of the test as a predictor of success
at law school is of dubious quality.6" However, the School did not
use this possibility to modify the PFYA of minority applicants in
order to measure their academic potential because it had two
separate admissions programs, one for majority and one for
minority applicants.6 The University avoided a comparison of
the abilities of majority and minority applicants. The Admissions
Committee sought to select, through the normal minority
admissions program, a reasonable proportion of minority
persons.6 2 This was believed to be anywhere between 15% and
20% of the total student body.6 3 The existence of a separate
minority admission program suggested that an insufficient
number of minority applicants were able to gain admission
through the normal selection procedure, which consisted mainly
of a consideration of the numerical factors but which did not
exclude subjective criteria listed in the Admissions Policy
Statement. If a reasonable proportion of minority applicants had
been able to gain admission through the normal admission
process, there would not have been a need for a separate minority
admissions program. Thus, there was the distinct possibility that
an undetermined number of minority applicants would not have
been selected save for their membership of a racial or ethnic
group. In fact, the University admitted that it discriminated on
the basis of racial and ethnic factors, and that this resulted in the
admission of minority applicants who would have been rejected
otherwise.64 This was also in line with the Guide for Applicants
which stated that an "applicant's racial or ethnic background"
was "considered as one factor in our general attempt to convert
60. Robert M. O'Neil, Racial Preference and Higher Education: The Larger
Context, 60 VA. L. REV. 925 (1974). Professor Robert M. O'Neil argues that less
emphasis should be placed on traditional admission criteria because "organizations
which advise in the development.., of standardized admission tests have urged...
that race may be considered as one of the admission factors." Id. at 946. He points
out that a more flexible approach to the traditional admission criteria is necessary
because the use of standardized test scores and grade averages, as predictors of
academic performance, disproportionately excluded minority groups from higher
education, and many who are denied access as a result are qualified, in fact, and
would do academic work well. Id. at 945-46.
61. DeFunis v. Odegaard, 507 P.2d 1169, 1174-75 (Wash. 1973), vacated by 416
U.S. 312 (1974) (per curiam).
62. Id. at 1175-76.
63. DeFunis, 416 U.S. at 347.
64. Id. at 331 (Douglas, J., dissenting).
formal credentials into realistic predictions."6 5 The issue in

DeFunis was not the practice of departure from test scores
because they do not result necessarily in the selection of the best
or most desirable students, but the much narrower decision to
include race and ethnic background among the criteria, which
may warrant such departures. All this led Justice Douglas to
state that "[w]hat places this case in a special category is the fact
that the school did not choose one set of criteria but two, and then
determined which to apply to a given applicant on the basis of his
66
race."
As no specific number for special admission was determined
in advance, the School insisted that the estimate did not amount
to a quota.6 7 Whether the proportion sought by the School
represented a quota is largely irrelevant to the present inquiry.
The fact that there was a separate admissions program, which
was necessary to ensure a reasonable proportion presupposed
that a certain (yet undetermined) number of seats was reserved
for minority applicants who were to be admitted on the basis of
race or ethnic background. It was certain, as Justice Douglas
argued, that "this policy did reduce the total number of places for
68
which DeFunis could compete - solely on account of race."
Thus, the Admissions Committee, at a specific stage in its
procedure, did accord preferences solely on the basis of race or
ethnic background rather than make decisions on the basis of
individual characteristics. The Supreme Court of Washington
considered the major issue in the dispute to be "whether the law
school may, in consonance with the equal protection provisions of
the state and federal constitutions, consider the racial and ethnic
backgrounds of applicants as one factor in the selection of
students ."69
In claiming to have been discriminated against on account of
his race, DeFunis argued that the quality and the suitability of
an applicant for admission to law school should be dependent
solely on intellectual merit, determined by the PFYA's and also in
"truly exceptional cases" by the factors (excluding race) listed in
65. DeFunis, 507 P.2d at 1174.

66. DeFunis, 416 U.S. at 325.
67. DeFunis, 507 P.2d at 1176.
68. DeFunis,416 U.S. at 333.
69. DeFunis, 507 P.2d at 1171.
the Admissions Policy Statement.7 ° Of course, there was no

certainty that DeFunis would have been admitted to the study of
law, even if there had not been racial preferences to minority
applicants, because of the subjective factors taken into
consideration and the fact that he would have to compete with
other majority applicants for the seats now taken by minority
applicants. However, this did not dispose of his argument that he
was never given the chance to compete with them on an
individual basis.
3. STANDARD OF REVIEW
The Supreme Court developed standards of review under the
Equal Protection Clause to test the constitutionality of racial
classifications. In particular, the Court, at various times, has
favored the minimum scrutiny test, the strict scrutiny test, and
the proposition that racial classifications are invalid per se, which
represents the strictest standard of review possible. A study of
those tests is important because the extent to which a racial
classification must be justified depends on the choice of test.
Indeed, the application of the per se test presumes that the use of
a racial characteristic in the selection of students to a
professional school can never be justified. In contrast, the
application of the minimum scrutiny test only requires that a
racial classification be relevant to the accomplishment of some
permissible state purpose. Consequently, the use of this test
would not jeopardize the introduction of a preferential admission
program because it could be argued that increasing minority
enrollment is a permissible state purpose and comes within the
constitutional competence of the legislature. But the strict
scrutiny test holds considerable danger for preferential admission
programs because it requires the existence of a compelling state
interest, which cannot be achieved by any means other than the
racial classification involved. Thus, as the standards of review
chosen determine whether, and if so to what extent, preferential
admission programs need to be justified, it is not surprising that
the courts in DeFunis devoted much time to a determination of
the correct test.
The trial court argued that after Brown v. Board of
Education,7 1 "the Fourteenth Amendment could no longer be
70. DeFunis, 507 P.2d at 1185-86.

71. Brown v. Bd. of Educ., 347 U.S. 483 (1954) [hereinafter Brown I].
20021 Preferential Admission Programs 423
stretched to accommodate the needs of any race" and that "the

only safe rule is to treat all races alike."72 The court acted upon
the premise that a racial classification giving preferential
admission to some students is invalid. On appeal, on the basis of
these statements, the Supreme Court of Washington rejected the
DeFunis trial court's conclusion that Brown I established the rule
that racial classifications were invalid per se.7" The court, in
rejecting the trial court's per se invalidity rule, pointed out that in
public school systems which were formerly segregated de jure, "a
racial criterion may be used - and indeed in some circumstances
must be used - by public educational institutions in bringing
about racial balance."74 Also, there seemed to be sufficient
Supreme Court authority to suggest that racial classifications, in
the absence of a finding of prior de jure discrimination, may be
constitutional in certain circumstances. In particular, the
Supreme Court indicated in Swann v. Charlotte-Mecklenburg
Board of Education7" that in the absence of a finding of a
constitutional violation, it was still within "the broad
discretionary powers of school authorities" to integrate the public
school system voluntarily. 76 Hence, there was sufficient
indication that the Court would accept voluntary efforts involving
racial classifications to remedy de facto segregation existing in an
elementary and secondary school context.77
Nevertheless, the proposition that racial classifications were
invalid per se was advocated by two experts in constitutional law,
Professors Alexander Bickel and Philip Kurland in their amicus
curiae brief written to guide the Supreme Court of the United
States in DeFunis. They argued that, in the past, racial
classifications had been accepted by courts as remedies for prior
discrimination, or where national defense might be endangered,
and that in other situations, racial classifications were per se
invalid. 7' However, these writers, recognizing that a per se
72. DeFunis,507 P.2d at 1178.

73. Id. at 1179.
74. Id.
75. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971).
76. Id. at 16.
77. Id.; Olson v. Bd. of Educ., 250 F. Supp. 1000 (D.C.N.Y. 1966) (state's decision
to reorganize school zones to eliminate racial unbalance not arbitrary); Guida v. Bd.
of Educ., 213 A.2d 843 (Conn. Sup. Ct., 1965) (school board's decision to rezone school
district to reduce racial unbalance constitutional).
78. Brief of Anti-Defamation League of B'Nai Brith as Amicus Curiae, at 2-3,
DeFunis v. Odegaard, 416 U.S. 312 (1974) (No. 73-235) [hereinafter Anti-Defamation
argument is difficult to sustain, argued that, as an alternative to

the per se invalidity of racial classifications, only a compelling
state interest could justify racial classifications and that a
suspect means must not be employed if there were other ways to
achieve the state's legitimate goals.79 In their opinion, there "was
in this case no substantial undertaking to discover the feasibility
of means other than the utilization of a presumptively invalid
racial quota for admission to the law school to accomplish the
alleged state interest asserted here." 0 Underlying these
arguments is the objection of the Professors to the use of quotas
as is stated in their conclusion:
A racial quota creates a status on the basis of factors that
have to be irrelevant to any objectives of a democratic society,
the factors of skin color or parental origin. A racial quota
derogates the human dignity and individuality of all to whom
it is applied. A racial quota is invidious in principle as well
as in practice. Though it may be thought here to help
"minority" students, it can as easily be turned against the
same or other minorities. The history of the racial quota is a
history of subjugation not beneficence. The evil of the racial
quota lies not in its name but in its effect. A quota by any
other name is still a divider of society, a creator of castes, and
it is all the worse for its racial base, especially in a society
desperately striving for an equality that will make race
irrelevant, politically, economically, and socially. 81
In any event, when DeFunis was appealed to the Supreme
Court of Washington, the Court concluded that a preferential
admission policy affected the expectations of non-minority
students who were displaced by it. 2 Consequently, it demanded
the application of the strict scrutiny test. The Law School
defended its preferential admission program on the basis that
something compensatory had to be done to overcome the long
history of past discrimination whereby minority members were
limited in their access to the legal profession.83 In the opinion of
the Law School, a preferential admission program did not violate
League Brief].
79. Anti-Defamation League Brief, supra note 78, at 31.
80. Id.
81. Id. at 31.
82. DeFunis v. Odegaard, 507 P.2d 1169, 1182 (Wash. 1973).
83. Id. at 1175.
the Equal Protection Clause, although such a program may work

discriminatorily in the sense that better qualified majority
applicants were denied admission solely on account of their race.
The majority of the Supreme Court of Washington reversed the
trial court's decision that race may not be taken into
consideration because the production of more minority lawyers
was, in its opinion, a compelling state interest which could be
pursued legitimately by the Law School. 4
IV. BAKKE IN THE COURTS
1. THE FACTS OF THE CASE

The Medical School of the University of California at Davis,
established in 1968, devised over two years a special admissions
program to increase the representation of disadvantaged minority
students.8 5 Operating a separate admissions program in
conjunction with the regular admissions process increased
representation of these students. Under the regular admissions
procedure, a candidate could submit his application to the
medical school in July of the year preceding the academic year for
which admission was sought.8 6 The candidate's rating embraced
interviewers' summaries, the candidate's performance in
undergraduate studies, especially in science courses and scores on
the Medical College Admissions Test (MCAT), letters of
recommendation, extra-curricular activities and other
biographical data.8 7 Each candidate was rated on a scale of 1 to
100.88
A separate committee, a majority of whom were members of

minority groups, administered the special admissions program.
On the 1973 application form, applicants were asked whether
they wished to be considered as "economically and/or
educationally disadvantaged"; on the 1974 application form the
question was whether they wished to be considered as members
of a minority group.89 The Medical School identified these groups
as Blacks, Chicanos, American Indians and Asians. If these
questions were answered affirmatively, the application form was
84. DeFunis, 507 P.2d at 1184-85.

85. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 272-73 (1978).
86. Id. at 273.
87. Id. at 274.
88. Id.
89. Id.
then forwarded to the special admissions committee. 90

Applications from minority applicants were noted by the special
admissions committee in a fashion similar to that used by the
general admissions committee, except that minority applicants
whose overall undergraduate grade point average fell below 2.5 in
a scale of 4 were not summarily rejected - a 2.5 grade point
average cut off was applied to regular applicants. 91
A specified number of places were reserved for minority
applicants, namely sixteen in 1973 and 1974, when 100 places
were available for first-year medical students.92 From 1971 to
1974, the special admissions program resulted in the enrollment
of sixty-three minority students, namely twenty-one Blacks,
thirty Mexican Americans, and twelve Asians. Over the same
period, the regular admissions program produced one Black, six
Chicanos and thirty-seven Asians, a total of forty-four minority
94
students.
Allan Bakke, a White applicant, applied in 1973 and 1974,
and was each time considered by the general admissions
program. 95 In both years, he was rejected even though minority
applicants were admitted under the special admissions program
with scores significantly lower than Bakke's. 96 After his second
rejection, Bakke filed a suit in the Superior Court of California
seeking his admission to the Medical School. 97 He claimed that
the School's admissions program operated to exclude him from
the School on the basis of his race, in violation of his rights under
the Equal Protection Clause of the Fourteenth Amendment.9"
The trial court found that the special admissions program
operated as a racial quota and decided that the "plaintiff is
90. Bakke, 438 U.S. at 274.

91. Id. at 275.
92. Id.
93. Id.
94. Id. at 275-76.
95. Id. at 276.
96. Bakke, 438 U.S. at 277.
97. Id.
98. Id. The question of whether Title VI of the Civil Rights Act affords a private
right of action is not discussed here. It suffices to mention that Justice White devoted
his whole opinion to this issue and argued that there was no private right of action.
The Stevens Four decided that there was such a right, whereas the Brennan Four
(excluding Justice White) merely assumed that such a right existed for the purpose of
deciding the case.
entitled to have his application.., considered without regard to

his race" and that the special admissions program violates the
Fourteenth Amendment to the United States Constitution, the
State Constitution, and federal statutory acts. 99 But the court
also found that Bakke had failed to carry his burden of proving
that he would have been admitted but for the existence of the
special admissions program.' 0 0 Bakke appealed to the Supreme
Court of California from the portion of the court's judgment
denying him admission. That court applied strict scrutiny
because the University's admissions program involved a racial
and hence "suspect" classification, which was only to be upheld
when such a classification was necessary to the achievement of a
compelling state interest.'0 ' The California Supreme Court
agreed that the goal of increasing the number of physicians
willing to serve members of minority groups was a compelling
state interest, but it also ruled that the special admissions
program was not necessary to achieve this goal.'0 2 The court's
judgment was based solely on the Equal Protection Clause of the
Fourteenth Amendment (thus disregarding the possibility of
ruling on the basis of the California Constitution), which was
interpreted as requiring that "no applicant may be rejected
because of his race, in favor of another who is less qualified, as
measured by standards applied without regard to race."0 3 The
court also found that the burden of proof had shifted to the
University to demonstrate that Bakke would not have been
admitted in the absence of the special admissions program.'0 4 As
the University was unable to do this, the court ordered the
admission of Bakke.
99. Bakke, 438 U.S. at 279, 409 n.2 (Stevens, J., concurring in part and dissenting
in part).
100. Id. at 279.
101. Bakke v. Regents of Univ. of Cal., 553 P.2d 1152, 1162-63 (Cal. 1976).
102. Id. at 1165.
103. Id. at 1166; see also Hupart v. Bd. of Higher Educ. of New York, 420 F. Supp.
1087 (1976) (declaring a preferential admission program, which resulted in 50%
representation of minorities in the entering class, which was designed to prepare
students for careers in medicine, unconstitutional).
104. Bakke, 553 P.2d at 1172; cf Alevy v. Downstate Med. Ctr. 348 N.E.2d 537
(N.Y. 1976). In Alevy it was decided that, even though petitioner had standing, he
failed to demonstrate that he had personally suffered any legal harm as a result of
respondent's student selection process. Id. at 547. The Court held that the
petitioner would not have been able to be admitted even if all the minority applicants
were not admitted because he was only number 154 on the waiting list. Id.
The judgment of the Supreme Court of California was stayed

while the Supreme Court of the United States considered the
merits of the case. It decided Bakke on June 28, 1978.105 Four
Justices, namely Justices Brennan, White, Marshall, and
Blackmun (who are known in the subsequent legal literature as
the Brennan Four) rejected the contention that Title VI of the
Civil Rights Act proscribed such use of race as was made at the
University, and held that it incorporates the equal protection
standard of the Fourteenth Amendment. 1°6 They held that the
Equal Protection Clause permits race, to be used as the decisive
factor in a selection process, and would thus have allowed the use
of quotas. 1°7 Four other members of the Court, namely Justices
Stevens, Stewart, Rehnquist, and Chief Justice Burger (referred
to hereafter as the Stevens Four) refused to reach a decision
based on the Equal Protection Clause; instead, they based their
judgment exclusively on Title VI.' °8 They held that Title VI has a
life of its own and proscribed conduct in the field of education,
which is not outlawed, of necessity, by the Equal Protection
Clause.' 0 9 They declared the University's admissions program,
which made use of a quota, illegal and in violation of Title VIAu °
Thus, the judges of the California Supreme Court who admitted
Bakke did so on a much narrower ground than those who would
not have admitted him.
Justice Powell also considered the Civil Rights Act and
agreed with the Brennan Four that this Act does not have an
independent life of its own."' In his view, Title VI involved a
prohibition of racial discrimination similar to that of the
Constitution: it embodied constitutional principles." 2 He argued
on the basis of the Equal Protection Clause that "race, could be a
consideration in an admissions procedure." 1 3 Consequently, he
joined the Brennan Four to overrule the decision by the Supreme
Court of California that "race" may never be taken into
consideration. But he also joined the Stevens Four in declaring
105. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 265 (1978).
106. Bakke, 438 U.S. at 271, 340.
107. Id. at 325-26, 361, 369, 373-79.
108. Id. at 408, 411-421.
109. Id. at 421.
110. Id. at 421.
111. Id. at 287.
112. Bakke, 438 U.S. at 284-90.
113. Id. at 317.
the race quota-based admissions procedure at the University

illegal. For the Stevens Four the ground was Title VI, whereas
for Justice Powell the ground was the Equal Protection Clause.
The legal basis for admitting Bakke was thus mixed, whereas
that for excluding him was based completely on the Constitution.
2. STANDARD OF REVIEW
Since DeFunis, the application of the proper standard of
review has been the subject of debate in some cases dealing with
preferential admission to professional schools. It was suggested
in Alevy v. Downstate Medical Center"4 that the court need apply
115
neither the minimum scrutiny test nor the strict scrutiny test.
Alevy was an action brought by the plaintiff to order the medical
school to admit him in its class of 1974-75.116 He claimed that the
school illegally denied him admission because minority students
presenting inferior credentials were accepted." 7 The judge felt
that the "inflexibility of the traditional equal protection
approaches is readily apparent for each is polarized and outcome-
determinative.""' He stated this view with regard to the proper
standard of review as follows:
We are of the view that in deciding an issue of whether
reverse discrimination is present, the courts should make
proper inquiry to determine whether the preferential
treatment satisfies a substantial State interest .... In sum,
in proper circumstances, reverse discrimination is
constitutional. However, to be so, it must be shown that a
substantial interest underlies the policy and practice and,
further, that no nonracial, or less objectionable racial,
classifications will serve the same purpose. 19
Realizing that a "substantial state interest" is a vague concept,
the court stated that the policy of preferential admission must
have a basis in "actuality, and [be] not merely conjectural" and at
a minimum, the State-sponsored scheme must further some
legitimate governmental purpose. 2 °
114. Alevy v. Downstate Med. Ctr., 348 N.E. 2d 537 (N.Y. 1976).
115. Id. at 545.
116. Id. at 540.
117. Id.
118. Id. at 543.
119. Id. at 545-546.
120. Alevy, 348 N.E.2d at 545.
In another case, Rosenstock v. Board of Governors of

University of North Carolina,2 ' it was argued that racial
classifications, which discriminate against majorities, are to be
subjected to the strict scrutiny test.'2 2 The court held that the
State University program of preferential admission, with respect
to minority applicants, did not violate the Equal Protection
Clause because the program extended benefits to minority groups
and the state had a legitimate interest in educating all its
citizens:
In any event the Court is of the opinion that since the
experimental admissions program carried on by UNC seeks
to include, rather than isolate, students of different races, the
policy is not unconstitutional and does not offend the equal
protection clause. Other courts in our federal judiciary have
approved race conscious policies in other factual situations
where the intent of the policy was to provide opportunity for
1 23
certain minority groups rather than to deprive benefits.
In view of this confusion as to the proper standard of review, it is
not surprising that the24Supreme Court paid special attention to
this problem in Bakke. 1
In Bakke, the University maintained that, even though
decisions based on race are reviewable under the Equal
Protection Clause, the strict scrutiny test should be applied only
to racial classifications that disadvantage "discrete" and "insular"
minorities. 2 5 Furthermore, the University of California
suggested that "white males, such as the respondent, are not a
'discrete and insular minority' requiring extraordinary protection
from the majoritarian political process.' 1 26 The University, in
effect, argued that a two-class theory exists which involves more
constitutional protection for Blacks, thereby assuming that the
level of judicial scrutiny should vary according to whether a
particular minority group is considered to be "discrete" and
"insular" or not. However, in the absence of workable guidelines
for testing the extent of "discreteness" or "insularity," this theory
121. Rosenstock v. Bd. Of Governors of Univ. of N.C., 423 F. Supp. 1321 (M.D.N.C.
1976).
122. Id. at 1325-26.
123. Id. (citations omitted).
124. Id. at 1325.
126. Id. at 290.
is arbitrary in its effect. Moreover, the two-class theory further

assumes that a minority is a monolithic entity and that racial
classifications either disadvantage or advantage the whole group.
Also, it overlooks the fact that a majority group is not monolithic
either. Within the majority there may exist minorities, which
could be considered discrete and insular. Justice Powell, aware of
these intractable "difficulties entailed in varying the level of
judicial review according to a perceived 'preferred' status of a
particular racial or ethnic minority,"' 127 rejected the two-class
theory. Justice Powell's analysis on this point deserves extensive
quotation:
It is far too late to argue that the guarantee of equal
protection to all persons permits the recognition of special
wards entitled to a degree of protection greater than that
accorded others. "The Fourteenth Amendment is not directed
solely against discrimination due to a 'two-class theory' - that
is, based upon differences between 'white' and Negro .... "
The concepts of "majority" and "minority" necessarily reflect
temporary arrangements and political judgments. As
observed above, the white "majority" itself is composed of
various minority groups, most of which can lay claim to a
history of prior discrimination at the hands of the State and
private individuals. Not all of these groups can receive
preferential treatment and corresponding judicial tolerance
of distinctions drawn in terms of race and nationality, for
then the only "majority" left would be a new minority of
white Anglo-Saxon Protestants. There is no principled basis
for deciding which groups would merit "heightened judicial
solicitude" and which would not. Courts would be asked to
evaluate the extent of the prejudice and consequent harm
suffered by various minority groups. Those whose societal
injury is thought to exceed some arbitrary level of tolerability
then would be entitled to preferential classifications at the
expense of individuals belonging to other groups. Those
classifications would be free from exacting judicial scrutiny.
As these preferences began to have their desired effect, and
the consequences of past discrimination were undone, new
judicial rankings would be necessary. The kind of variable
sociological and political analysis necessary to produce such
rankings simply does not lie within the judicial competence -
127. Bakke, 438 U.S. at 295.

even if they otherwise were politically feasible and socially

desirable.128
The two-class theory also overlooks the point that, if the use
of racial classifications favoring a "discrete" and "insular"
minority were to result in the creation of yet another discrete and
insular minority within the majority, then the application of the
minimum scrutiny test would only shift the burden from one
group to another but not resolve any problem. Indeed, among
others, Professor Thomas Sowell, an African-American economist,
argues that just as the students who are sacrificed are likely to
come from the bottom of the White distribution, so the minority
members admitted are likely to come from the top of the minority
distribution. 1 29 Thus, if we accept Sowell's point that preferential
admissions programs represent a forced transfer from the most
disadvantaged majority students to the most advantaged
minority students, then it is clear that these preferential
admissions programs favoring "discrete" and "insular" minorities
may well shift the social burden from one group to another.
An argument against the use of the minimum scrutiny test is
the fact that racial classifications that allegedly favor discrete
and insular minorities may in reality stigmatize rather than
favor those they are supposed to help. 3 ' This is an additional
reason why Justice Powell demands that racial classifications,
which favor discrete and insular minorities be strictly
128. Bakke, 438 U.S. at 295-97 (citations omitted).

129. Thomas Sowell, Are Quotas Good for Blacks?, COMMENTARY, June 1978, at 39,
42; cf ALAN H. GOLDMAN, JUSTICE AND REVERSE DISCRIMINATION, 90-91 (Princeton
Univ. Press 1979) ("It is clear that when preferential treatment is advocated for
whole minority groups, the most competent ... will be chosen for admissions and
hiring."); Barry R. Gross, DISCRIMINATION IN REVERSE. IS TURNABOUT FAIR PLAY? 12
(N.Y. Univ. Press 1978) ("[A] scheme whose sole purpose is to provide compensation
to entire classes of persons reaches only to a few members of those classes .... "); but
see NATHAN GLAZER, AFFIRMATIVE DISCRIMINATION. ETHNIC INEQUALITY AND
PUBLIC POLICY, 4iii (Harvard Univ. Press 1987) (1975) (suggesting that affirmative
action threatens to increase racial tension without noticeable advancement of
minorities).
130. Some segments of the Black American community have regarded the
integrationist efforts as a last ditch attempt to absorb their black culture. See
STOKELY CARMICHAEL & CHARLES V. HAMILTON, BLACK POWER: THE POLITICS OF
LIBERATION IN AMERICA passim (Random House 1967); Charles H. Jones, Jr., Do
Separate Facilities For Black Students Provide Equal Protection Upside Down?, U.
ILL. L. REV. F. 73, 73 (1975); Jack B. Weinstein, Equality, Liberty, and the Public
Schools, 48 U. CIN. L. REV. 203, 211 n.29 (1979).
scrutinized.' Indeed, strict scrutiny needs to be applied to

determine whether a classification really favors a minority group.
As there are no principles for deciding whether racial and ethnic
classifications inherently reflect a benign or malevolent purpose,
only strict scrutiny of the classification will ensure that it does, in
fact, favor a minority. Justice Brennan in United Jewish
Organization of Williamsburgh v. Carey supports this point.'32
"[Elven preferential treatment may act to stigmatize its recipient
groups, for although intended to correct systemic or institutional
inequities, such a policy may imply to some the recipients'
1 33
inferiority and especial need for protection."
For example, the argument could be made that a preferential

admissions program might substantially limit a minority
member's chances of employment. Indeed, prior to the
establishment of preferential admissions programs, an employer
taking a Black graduate knew that he was employing a gifted and
highly motivated person. Now, it could be argued that all Black
graduates from a university with such a preferential admissions
program are harmed because an employer may no longer assume
that a minority graduate is gifted and may therefore be reluctant
to employ him. This is even more so if both admission and
performance standards for special candidates are relaxed. It does
not help to argue that minority candidates may be able to prove
their worth in the job-selection process, because the original
presumption of reduced competence is sufficient to challenge the
131. But Justice Powell pointed out that "discreteness" and "insularity" may be
relevant in deciding "whether or not to add new types of classifications to the list of
'suspect' categories or whether a particular classification survives close
examination." Bakke, 438 U.S. at 290. Regarding "discreteness" as an element relied
upon in recognizing a "suspect" class see Massachusetts Bd. of Retirement v. Murgia,
427 U.S. 307, 313 (1976) (neither uniformed police officers nor the elderly constitute
a "discrete and insular group"); Graham v. Richardson, 403 U.S. 365, 372 (1971)
("Aliens as a class are a prime example of a 'discrete' and 'insular' minority.");
Oregon v. Mitchell, 400 U.S. 112, 295 n.14 (1970) (Stewart, J. , concurring in part
and dissenting in part) ("The establishment of an age qualification is not state action
aimed at any discrete and insular minority."); Minnersville School Dist. v. Gobitis,
310 U.S. 586, 606 (1940) (legislation that represses religious freedom should be
subject to the same judicial scrutiny as that which infringes a racial minority's
constitutional liberty); United States v. Carolene Prod. Co., 304 U.S. 144, 152 n.4
(1938) (Stone, J., dissenting) ("There may be narrower scope for operation of the
presumption of constitutionality when legislation appears on its face to be within a
specific prohibition of the constitution.").
132. United Jewish Org. of Williamsburgh v. Carey, 430 U.S. 144 (1977).
133. Id. at 173-74.
premise that preferential admissions programs need not be

scrutinized strictly because they favor minorities. Also, the
possibility that minority graduates may have to make a special
effort to convince a prospective employer of their competence
brings into doubt the application of the minimum scrutiny test.
Thus, it is important not only to take into account the purpose of
such a preferential admissions program, but also its effect in
order to determine the proper level of review. If strict scrutiny
were applied only to legislation that disadvantages a discrete or
insular minority, then legislation having an unintended
stigmatizing effect would not be subject to strict scrutiny.
Justice Powell stated, in Bakke, that race is a suspect
classification, which can be justified only if "its purpose or
interest is both constitutionally permissible and substantial, and
that its use of the classification is 'necessary... to the
accomplishment' of its purpose."'3 4 While it may be argued that a
"constitutionally permissible and substantial" interest differs
from a compelling state interest, there is a clear indication in
Justice Powell's opinion that they are interchangeable. Indeed,
elsewhere in his opinion he speaks about a compelling
governmental interest: "When they touch upon an individual's
race or ethnic background, he is entitled to a judicial
determination that the burden he is asked to bear on that basis is
1 35
precisely tailored to serve a compelling governmental interest."
Justice Brennan also rejected the minimum scrutiny test but
adopted what Professor Stone has called a "quasi-strict" scrutiny
test or an intermediate test of review.'3 6 On the one hand,
Brennan did not refer to a "compelling state interest"; on the
other hand, he wanted strict scrutiny "because of the significant
risk that racial classifications established for ostensibly benign
purposes can be misused.., an important and articulated
purpose for its use must be shown."' 37 Again, it could be
questioned to what extent an "important and articulated" purpose
differs from a compelling state interest. Justice White joined
Justice Powell in requiring strict scrutiny, but also joined
Brennan's decision in full even though his judgment required less
134. Bakke, 438 U.S. at 305.

135. Id. at 299.
136. Julius Stone, Equal Protectionin Special Admissions Programs:Forwardfrom
Bakke, 6 HASTINGS CONST. L.Q. 719, 734, 741 (1979).
137. Bakke, 438 U.S. at 361.
than strict scrutiny. The important point is that all judges who
spoke to the constitutional issues involved required significantly
more than minimum scrutiny.
V. THE CONFLICT BETWEEN TWO MERIT SYSTEMS
1. DEFUNIS:THE CONFLICT BETWEEN THE TWO MERIT
SYSTEMS UNRESOLVED
As observed previously, the discussion in DeFunis focuses on

the choice between two broad conceptions of merit. The first
conception of merit treats "race" as an individual characteristic,
which may be considered only if it is relevant to determine an
applicant's suitability for advanced academic legal study. The
goal of increasing the number of minority students in professional
schools would, however, be compatible with the second conception
of merit, according to which race may be used as a group
characteristic in order to produce desirable social results or
outcomes. As I will now argue, this conflict is not resolved in the
DeFunis litigation.13
The Supreme Court of the United States, as previously
outlined, decided DeFunis on a technical ground because DeFunis
had enrolled in his final quarter of study, and the University had
promised that he would be allowed to finish his term, regardless
of the outcome of the case.13 9 However, Justice Brennan argued
that the case could not rest on this technical point because the
promise by the University was not an absolute guarantee.14 He
asked what would happen if DeFunis's graduation at the end of
the term was prevented because of illness, economic necessity or
even academic failure, thereby requiring him to enroll for yet
another term and to face the hurdle of the law school's admissions
policy again.' In Justice Brennan's opinion, the University's
"assurances have not dissipated the possibility that petitioner
might once again have to run the gantlet of the University's
138. This conflict was described succinctly as follows in Anderson v. San Francisco
Unified School District. 357 F. Supp. 248 (N.D. Cal. 1972); "The questions that must
be asked in this regard are: must an individual sacrifice his right to be judged on his
own merit by accepting discrimination based solely on the color of his skin? How can
we achieve the goal of equal opportunity for all if, in the process, we deny equal
opportunity to some?" Id. at 249.
139. DeFunis v. Odegaard, 416 U.S. 312, 319-20 (1974) (per curiam).
140. Id. at 348 (Brennan, J., dissenting).
141. Id.
allegedly unlawful admissions policy."' 4 2 His Honor's insistence

that the technical ruling was incorrectly based on "a supposed
inability to render any judgment that may affect one way or the
other petitioner's completion of his law studies,"'4 3 perhaps
explained why the Supreme Court vacated the judgment of the
Supreme Court of Washington and remitted the case "for such
proceedings as by that court may be deemed appropriate."' 4 4
Thereupon, DeFunis moved, in the Supreme Court of
Washington, to have his case designated as a class action and to
reinstate the original judgment of the trial court. 45 Four judges
spoke out against granting a class action and accepted the
University's counter-claim to reinstate the Washington Supreme
Court's prior judgment. 46 Three judges decided against granting
a class action, but argued that it would not be appropriate to
reinstate the Court's prior judgment since a reinstated judgment
would mean that, in the future, any claim involving reverse
discrimination in the Washington courts could be granted
summarily and could eventually reach the United States
Supreme Court on a bare complaint unaccompanied by a fully
developed record.' Justice Finley stated his view as follows:
"Reinstatement by this Court would thus operate to deprive the
Supreme Court of the factual basis so often necessary to cogently
frame the issues and upon which to predicate a well-reasoned and
1 48
well articulated opinion."
Chief Justice Hale and Justice Hunter would have granted

the class action and would have reinstated the original trial
court's judgment because the case presents matters of substantial
public interest, particularly where a final determination of the
issue is essential in guiding the conduct of public officials. 49 The
end result of the protracted litigation in DeFunis is that five
judges, a majority, were unwilling to reinstate the court's prior
order - a situation that left the issues in DeFunis undecided.
142. DeFunis, 416 U.S. at 348 (Brennan, J., dissenting).

143. Id.
144. Id. at 320.
145. DeFunis v. Odegaard, 529 P.2d 438, 438 (1974).
146. Id. at 439-44.
147. Id. at 446 (Finley, J., Bratenbach, J., and Wright, J., concurring in part and
dissenting in part).
148. Id.
149. Id. at 450-53 (Hale, J., dissenting).
DeFunis did not provide us with an answer to the question of

whether race perceived as a group characteristic may be used to
increase minority enrollment in professional schools. The
Supreme Court of Washington failed to accommodate the
different interests involved. It did not sufficiently consider the
claim that a preferential admissions program, based on mere
membership of a racial or ethnic minority group, conflicted with
the individual's expectation to be considered on the basis of
relevant individual characteristics.
Justice Douglas stated in his dissenting opinion that, in his
view, the merits of DeFunis could not be solved by the Supreme
Court of the United States on the basis of the facts supplied by
the parties. 15 0 He made the point that he could agree with the
decision of the Supreme Court of Washington to allow the
preferential admissions program to exist only if the selection of
students was racially neutral, because whatever DeFunis's race
"he had a constitutional right to have his application considered
on its individual merits in a racially neutral manner" 15 ' and
"[t]here is no constitutional right for any race to be preferred."' 52
At first sight, these statements appear surprising in view of the
fact that the University conceded that it discriminated on the
basis of race and ethnic background and that many minority
students finally selected would not have been admitted if their
applications were compared to majority applicants. However,
Justice Douglas's comments were directed to the question of
whether the LSAT used by law schools in the United States,
which reflected questions touching on the cultural background of
majority applicants, could be used in order to measure the
intellectual potential of minority applicants in any case. He
suggested that, once the LSAT, as an obstacle to judging the true
intellectual capabilities of minority applicants, had been removed
and replaced by other tests, 3 it may be possible that minority
applicants selected on the basis of race or ethnic background
would have been selected on the basis of racially and ethnically
neutral factors:
150. DeFunis, 529 P.2d at 344.

151. DeFunis v. Odegaard, 416 U.S. 312, 337 (1974) (Douglas, J., dissenting).
152. Id. at 336.
153. Id. at 340; cf Albemarle v. Moody, 422 U.S. 405, 435 (1975) (requiring that
employers use a test criteria - which fairly reflect the qualifications of minority
applicants vis-d-vis non-minority applicants).
The invention of substitute tests might be made to get a

measure of an applicant's cultural background, perception,
ability to analyze, and his or her relation to groups. They are
highly subjective, but unlike the LSAT they are not
concealed, but in the open. A law school is not bound by any
legal principle to admit students by mechanical criteria
which are insensitive to the potential of such an applicant
which may be realized in a more hospitable environment. It
will be necessary under such an approach to put more effort
into assessing each individual than is required when LSAT
scores and undergraduate grades dominate the selection
process. 154
Therefore, he did not object to the University's decision to set
"minority applications apart for separate processing"' 5 because
minorities had cultural backgrounds vastly different from the
majority. Thus, a separate classification was warranted "lest race
be a subtle force in eliminating minority members because of
cultural differences" 5 ' and "to make certain that racial factors do
not militate against an applicant or on his behalf."157 Therefore,
he would allow a separate classification in order to nullify the
effects of the LSAT as far as minorities are concerned.
Justice Douglas knew that it would be necessary to examine
the substitute tests, which might be used to assess the true
potential of minority students in order to ascertain whether they
constituted a vehicle either to deny admission to, or to continue
with preferential treatment, of minority applicants. "A trial
would involve the disclosure of hidden prejudices, if any, against
154. DeFunis, 416 U.S. at 340 (Douglas J., dissenting).

155. Id. at 334.
156. Id. at 335. See also Flanagan v. President & Dir. of Georgetown Col., 417 F.
Supp. 377, 384 (1976). In Flanagan,the plaintiff claimed racial discrimination in the
award of financial assistance to students of a federally funded legal centre. Id. at
378-79. The Centre had allocated 60% of all available scholarship funds to those
students considered as minorities or disadvantaged in the freshman class. Id. at 379.
This resulted in the availability of 60% of the funds for 11% of the students and 40%
for the majority (89% of the students). Id. at 381. In a memorandum decision the
District Judge decided that there was sufficient evidence to show the University's
liability for discriminatory action. Id. at 385. See also Mildred W. Ravenell, DeFunis
and Bakke. The Voice Not Heard, 21 HOw. L.J. 128, 161 (1972) ("Racial neutrality
may reasonably be read to require that race be identified in order to minimize what
might otherwise be a presumptive lack of ability based upon an uninformed or
insensitive utilization of objective data of measurements.").
157. DeFunis, 416 U.S. at 336 (Douglas, J., dissenting).
certain minorities and the manner in which substitute

measurements of one's talents and character were employed in
the conventional tests. 158
2. BAKKE: INDIVIDUAL RIGHTS AGAINST GROUP RIGHTS
The Bakke litigation involves a conflict between the principle
that applicants should be selected for admission on the basis of
relevant individual characteristics, and the principle that race as
a group characteristic may be used to achieve a desirable social
result, for example, an increase in minority enrollment in
professional schools. 159 A displaced majority student who
complains about a racial quota or racial preference really argues
that professional schools should not single out a group, defined by
race, for burdensome treatment. Thus, the validity of the
individual's claim depends on the illegality of an underlying
scheme, which treats racial groups differently.
The United States Constitution states that no state "shall
deny to any person within its jurisdiction the equal protection of
the laws."16° The Supreme Court has interpreted the rights 6
established by the Equal Protection Clause as personal rights.' '
The Supreme Court said in Yick Wo. v. Hopkins162 that the
guarantees of equal protection "are universal in their application,
to all persons, within the territorial jurisdiction, without regard
to any differences of race or color or of nationality."'63 The Equal
158. DeFunis,416 U.S. at 335-36 (Douglas, J., dissenting).

160. U.S. CONST., amend. XIV.
161. See McDonald v. Santa Fe Trail Transp. Co., 427 U.S. 273, 296 (1976) (holding
that relief under 42 U.S.C. § 1981 was available to white as well as black people);
Hills v. Gautreaux, 425 U.S. 284 (1976) (holding that remedial measures against
HUD permissible for racial discrimination); Hernandez v. Texas, 347 U.S. 475 (1954)
(revising exclusion of persons of Mexican descent from service as jury commissioners,
grand jurors, and petit jurors); Truax v. Raich, 239 U.S. 33, 41 (1951) (holding an
Arizona law unconstitutional for its preference of native born citizens over non-
native born citizens); Shelley v. Kraemer, 344 U.S. 1, 22 (1948) (holding that the
rights created by the Fourteenth Amendment are to be guaranteed to the individual);
McCabe v. Atchison, Topeka & Santa Fe Railway Co., 235 U.S. 151, 161-62 (1914)
(discussing the essence of the Fourteenth Amendment as a personal right); Strauder
v. West-Virginia, 100 U.S. 303, 308 (1879) (discussing right of slaves to be free from
unfriendly legislation as a personal right under the Fourteenth Amendment).
162. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
163. Id. at 369. See also Runyon v. McCrary, 427 U.S. 160, 192-202 (1970) (a
general prohibition into a contract with a person because of race is contrary to the
language of 42 U.S.C. § 1981).
Protection Clause thus identifies with the anti-discrimination

principle, which merely prohibits discrimination. However, this
suggests that this principle is not the only principle, which gives
content and meaning to the ideal of equality embodied in the
clause. Professor Owen M. Fiss has argued that the clause can be
interpreted as incorporating a principle, which aims at giving an
advantage to disadvantaged groups.' His argument is based on
the conception of Blacks in American society as a social group
with limited socio-economic and political power:
[B]lacks should be viewed as having three characteristics
that are relevant in the formulation of equal protection
theory: (a) they are a social group; (b) the group has been in a
position of perpetual subordination; and (c) the political
power of the group is severely circumscribed. Blacks are
what might be called a specially disadvantaged group, and I
would view the Equal Protection Clause as a prototype of the
protected groups. Blacks are the prototype of the protected
group, but they are not the only group entitled to protection.
There are other social groups, even as I have used the term,
and if these groups have the same characteristics as blacks -
perpetual subordination and circumscribed political power -
they should be considered specially disadvantaged and
receive the same degree of protection. What the Equal
Protection Clause protects is specially disadvantaged groups,
not just blacks. A concern for equal treatment and the word
"person" appearing in the Clause permit and probably
165
require this generality of coverage.
Thus, in arguing that a principle of compensating
disadvantaged groups, which takes account of the social and
political status of groups, represents the ideal of equality in the
Equal Protection Clause, Professor Fiss brings to an end its
identification with the anti-discrimination principle. 1 66 The
significance of this latter interpretation is clear - it means that
preferential admissions programs need not be invalid under the
clause. Justice Powell rejected Fiss's argument, which in effect
constitutes a restatement of the two-class theory advocated by the
University. In singling out some groups for preferred treatment,
164. Owen M. Fiss, Groups and the Equal Protection Clause, in EQUALITY AND
PREFERENTIAL TREATMENT, 84-154 (M. Cohen, T. Nagel & T. Scanlon eds., 1977).
165. Id. at 127, 131-32.
166. Id. at 85.
the University interpreted the Equal Protection Clause as

incorporating a principle by which some groups could be given
preferential treatment. Consequently, the Equal Protection
Clause protected groups as well as individuals, and remedial
action could be undertaken even if it harmed individuals
belonging to other groups. If the clause incorporated a principle
of compensating disadvantaged groups, it can now be understood
why the University proposed that the minimum scrutiny test be
applied to those programs that favor discrete and insular
minorities.
If, however, the Equal Protection Clause is interpreted as
protecting groups as well as individuals, there is "no principled
basis for deciding which groups would merit heightened judicial
solicitude" and which would not.167 Justice Powell argued that, if
the Equal Protection Clause were not interpreted as protecting
individuals, then it would mean one thing to one person and
another to a person belonging to another race or ethnic group.16
The extent to which an individual is protected would depend on
whether his group is considered "discrete" and "insular."16 9 A
determination of the "discreteness" or "insularity" of a group
requires the establishment of criteria for determining which
groups in society should be preferred. However, as Justice
Douglas argues in DeFunis, this results in groups making
168. Id. at 295-97.
169. See DiLeo v. Bd. Of Regents of Univ. of Colo., 590 P.2d 486 (1978), cert. denied,
441 U.S. 927 (1979). In DiLeo, an Italian American law school applicant challenged
the constitutionality of a preferential admission program, called the "Special
Academic Assistance Program" administered by the University of Colorado Law
School. Id. at 486-87. The University designated Negroes, American Indians,
Mexican-Indians, and Puerto Ricans as disadvantaged groups, which could take
advantage of the program. Id. at 487. DiLeo did not challenge the establishment of
a program, which preferred disadvantaged students in general, but he wanted the
preferential admission program redrawn along non-racial lines. Id. at 488. DiLeo
based his argument on Justice Powell's insistence in Bakke that a university must
define groups in racially-neutral terms. Id. The majority of the members of the
Supreme Court of Colorado held that the applicant had no standing because his
academic qualifications were so poor that he would not have been entitled to
admission to the Law School if the preferential admission program were not in
existence: a successful challenge to the program's constitutionality would have left
the applicant's position unchanged and no remedy would have been available to him.
DiLeo, 590 P.2d at 489. Justice Erickson dissented, stating that the applicant had
standing and that the program which was drawn along racial lines was
unconstitutional because of the limitation imposed by Bakke. Id. at 490-92.
conflicting claims. 7 ' A determination as to whether a group is

one that should be preferred would inevitably involve an
examination of the extent of the prejudice and determination of
an arbitrary level of tolerance beyond which a group deserves
preferential treatment. Such a determination will be very
difficult to make because any society, and particularly American
society, is made up of innumerable groups. In addition, it
requires the constant establishment of new judicial rankings of
groups once the consequences of past societal discrimination
(which gives rise to preferred status) have been undone.
Justice Powell's rejection of the quota-based University at
Davis program is a clear indication that he is not willing to read a
principle of compensating disadvantaged groups into the Equal
Protection Clause.' But he also acknowledges that the anti-
discrimination principle does not reject race-conscious remedies
altogether. 172 Hence, Justice Powell's endeavors to distinguish a
"quota" from a program which considers "race" as one factor
among others could be interpreted as a serious attempt to choose
the first conception of merit, which in certain circumstances,
allows race to be considered as a relevant individual
characteristic in the selection of students to a professional
school."'
170. DeFunis v. Odegaard, 416 U.S. 312, 338 (1974) (Douglas, J., dissenting).
171. Bakke, 438 U.S. at 310.
172. Id. at 318.
173. Bakke figured prominently in DeRonde v. Regents of the University of
California. 625 P.2d 220 (Cal. 1981). There, the plaintiff, DeRonde (a white male),
was one of approximately 2,200 applicants for admission to the Law School of the
University of California at Davis, in 1975. Id. at 221. His application was rejected.
Id. Subsequently, he claimed that he was denied admission solely because of his
race, in violation of his rights guaranteed by the California and United States
Constitutions. Id. The Law School had no quota, but it used ethnic and racial
background as a relevant individual characteristic in its selection process. Id. at
222-23. The admission committee prevented automatic rejection of minority and
disadvantaged applicants by taking into consideration minority status and economic
disadvantage. DeRonde, 625 P.2d at 223. As no quota system was in operation and
"race" was only used as a factor in the admission process, the University's practice
appeared to be consistent with Justice Powell's decision in Bakke. However, the
court in DeRonde, in a 2-1 decision, stated that the decision in Bakke had proved to
be "weak and inconclusive." Id. at 228. It continued to say that, even though the
University's selection process was probably legal under the United States
Constitution as interpreted by Justice Powell, the California Constitution afforded
more protection: accordingly, decisions of the United States Supreme Court defining
fundamental civil rights are persuasive authority to be afforded respectful
consideration, but are to be followed by California courts only when they provide no
VI. PREFERENTIAL ADMISSION PROGRAMS:

BACKWARD-LOOKING ARGUMENTS
1. INTRODUCTION
In the United States, students were usually selected for

admission to professional schools on the basis of characteristics
including race, taken as an individual characteristic, which were
considered either necessary for or likely to be useful in advanced
academic work. However, in the seventies, the selection criteria
for admission to professional schools changed significantly
through the introduction of preferential admissions programs,
which involved admission to universities simply on the basis of
one's race, taken as a group characteristic. Many American
universities introduced these programs in order to increase the
number of minority students in their professional schools.
I argued that the introduction of these programs led to a
conflict between the two conceptions of merit introduced in Part
II of this article. I described the selection on the basis of relevant
individual characteristics, including race, as compatible with the
first conception of merit. Where admission proceeded on the basis
of the applicant's race, taken as a group characteristic, this
practice was compatible with the second conception of merit
according to which "race" might be used in order to bring about a
desirable social result unrelated to the functions of a university.
This latter conception of merit was based on the assumption that
professional schools ought to serve extraneous functions by
remedying the under-representation of minority students in these
schools, through the introduction of preferential admissions
programs.
Some proponents of preferential admissions programs defend
the introduction of these programs on the ground that many
social benefits are likely to ensue to minority applicants and to
society. Others offer "backward-looking" arguments, which deal
with compensatory considerations, to support these programs.
These arguments are the subject of this section of the article. In
less individual protection than is guaranteed by California. Id. at 228-29. The Court
argued that, unlike in other American states, "education" is considered a
fundamental interest in California. Therefore, any classification, which restricts
"education" is to be scrutinized more strictly in California than in the rest of the
nation. Id. The Court in DeRonde decided that applicants to professional schools
have to be selected on the basis of racially-neutral criteria. Id. at 229.
particular, this section will consider the question whether, and if

so, to what extent, compensation for "societal" discrimination,
which involves society as a whole, is a sufficient justification for
the selection of minority students solely on the basis of race. As
the consideration of this question is linked inextricably to the
prior logical question of what is the proper function of
universities and their professional schools, a brief reflection on
this issue is appropriate.
2. THE PROPER FUNCTION OF A UNIVERSITY

There is no general agreement among educational
authorities as to the proper function of a university. While some
writers emphasize traditional functions of a university such as
teaching, research, and professional training, 17 4 proponents of
preferential admission maintain that universities may be used as
instruments of "social engineering" aimed at solving persistent
ills in the wider society, although universities themselves may be
offended by this description. For example, in the seventies and
eighties, many American universities were transformed
gradually, and in some cases without design, into institutions, a
function of which was to produce more minority professionals.
Thereby, the traditional function of a university, which Passmore
described as the "advancement and the diffusion of learning," was
altered. 7 5 Disagreements among educationalists are exacerbated
by the fact that universities often differ in their proclaimed
mission. Some are interested mainly in teaching; others favor the
development of research institutions, and most universities differ
in their emphasis on particular courses and disciplines. For
example, some universities have a planned technological bias;
others emphasize liberal arts. Even though this plethora of
imputed functions suggests the impossibility of discovering the
proper function of a university, a number of functions, which most
educationalists attribute to universities, can be identified. By
identifying these functions, it becomes possible to establish
mininium necessary requirements without which an institution of
higher education cannot be described reasonably as a university
lest the notion be diluted.
174. See, i.e., Jacques Barzun, THE HOUSE OF INTELLECT (Harper & Bros. 1959);
Huston Smith, THE PURPOSES OF HIGHER EDUCATION (Harper & Bros. 1955).
175. See John Passmore, Quality and Equality Reconsidered, QUADRANT, Sept.
1981, at 3, 4-11 (exploring the use of educational affirmative action mechanisms as a
means to provide equality of opportunity).
Cardinal John Henry Newman published in 1852 his book

The Idea of a University, which has since become an educational
classic.' 7 6 The book was composed of two main sections, the first
one of which was devoted to "university teaching" and the second
of which dealt with "university subjects." Newman mainly
developed his views on the proper function of universities in the
first section. Even though he agreed that the training of
professional people came within the function of a university, he
described the "education of the intellect" as the essential function
of a university:
This I conceive to be the advantage of a seat of universal
learning, considered as a place of education. An assemblage
of learned men, zealous for their own sciences, and rivals of
each other, are brought, by familiar intercourse and for the
sake of intellectual peace, to adjust together the claims and
relations of their respective subjects of investigation. They
learn to respect, to consult, to aid each other. Thus is created
a pure and clear atmosphere of thought, which the student
also breathes .... He profits by an intellectual tradition,
which is independent of particular teachers, which guides
him in his choice of subjects, and duly interprets for him
those which he chooses. He apprehends the great outlines of
knowledge, the principles on which it rests, the scale of its
parts, its lights and its shades, its great points and its little,
as he otherwise cannot apprehend them. Hence it is that his
education is called "liberal." A habit of mind is formed which
lasts through life, of which the attributes are freedom,
equitableness, calmness, moderation, and wisdom .... This
then I would assign as the special fruit of the education
furnished at a university, as contrasted with other places of
teaching or modes of teaching. This is the main purpose of a
university in its treatment of its students.
In default of a recognized term, I have called the perfection

or virtue of the intellect by the name of philosophy,
philosophical knowledge, enlargement of mind, or
illumination, terms which are not commonly given to it by
writers of this day: but, whatever name we bestow on it, it is,
I believe, as a matter of history, the business of a university
176. JOHN HENRY CARDINAL NEWMAN, THE IDEA OF A UNIVERSITY (Image Books
1959).
to make this intellectual culture its direct scope, or to employ

77
itself in the education of the intellect ....
Newman's notion of a university, including his defense of a
liberal education, was rejuvenated almost a century later by
Professor Karl Jaspers. He described education of the whole
man, research, and professional training as the proper functions
of a university:
Three things are required at a university: professional
training, education of the whole man, research. For the
university is simultaneously a professional school, a cultural
center and a research institute. People have tried to force the
university to choose between these three possibilities ....In
the idea of the university, however, these three are
indissolubly united. One cannot be cut off from the others
without destroying the intellectual substance of the
university, and without at the same time crippling itself. All
three are factors of a living whole. By isolating them, the
17 8
spirit of the university perishes.
But, unlike Newman, Jaspers also strongly emphasized that the
idea of a university implied communication among its members,
which he described as "the readiness to relate oneself to things
with the aim of getting at a picture of the whole in terms of one's
special discipline."' 7 9 Thus, while Jaspers's book was a
reaffirmation of Newman's idea of liberal education as a proper
function of a university, he added that active stimulation of
original inquiry through communication with others was an
important function of a university.
Professor Alfred N. Whitehead also discussed the idea of a
university as a place where knowledge was imparted through the
process of communication among its members. While arguing
that it was the function of universities to impart knowledge and
to conduct research,8 ° he reminded us long ago that "education"
and "research" did not provide a justification for the existence of
universities because these functions "could be performed at a
177. NEWMAN, supra note 176 at 128-29, 149.

178. KARL JASPERS, THE IDEA OF THE UNIVERSITY 40-41 (Karl W. Deutsch ed.,
Beacon Press 1959).
179. Id. at 62.
180. A.N. WHITEHEAD, THE AIMs OF EDUCATION AND OTHER ESSAYS 138 (The
McMillan Co. 1929).
cheaper rate, apart from these very expensive institutions.'' l He

argued that the justification for the existence of universities
stemmed from the fact that they were places where information
was imparted and research done in an imaginative way. He
identified the "imaginative acquisition of knowledge" as the
proper function of universities:
The primary reason for their existence is not to be found
either in the mere knowledge conveyed to the students or in
the mere opportunities for research afforded to the members
of the faculty .... The justification for a university is that it
preserves the connection between knowledge and the zest of
life, by uniting the young and the old in the imaginative
consideration of learning. The university imparts
information, but it imparts it imaginatively. At least, this is
the function which it should perform for society. A university
which fails in this respect has no reason for existence. This
atmosphere of excitement, arising from imaginative
consideration, transforms knowledge. A fact is no longer a
bare fact: it is invested with all its possibilities. It is no
longer a burden on the memory: it is energizing as the poet of
82
our dreams, and as the architect of our purposes.
If the imaginative impartation and acquisition of knowledge
is accepted as the proper function of universities and as a
minimum prerequisite for their existence, then important
consequences for the selection of students ensue. These
consequences are recognized by Jaspers who states that "the
person seeking admission must be educable, that is, he must have
the capacities, talents and characteristics which can be developed
through study at a university."8 3 Thus, he believes that only
those applicants should be selected who are best able to
contribute to and benefit from a university education. He realizes
that it is difficult to list the characteristics, which are needed to
contribute to and to profit from a university education. While the
intellectual aptitude of applicants can be measured by
intelligence tests, other qualities of mind and character, which
are also relevant to university education, cannot be assessed
easily. 8 4 However, the existence of different types of aptitude,
181. WHITEHEAD, supra note 180, at 138.

182. WHITEHEAD, supra note 180, at 138-39.
183. JASPERS, supra note 178, at 101.
184. JASPERS, supra note 178, at 111-18.
including those which cannot be tested readily, does not obviate

Jaspers's message that an applicant "must have the capacities,
talents and characteristics" which bear a direct or indirect
relationship to study in a university, and students possessing
these qualities are the most likely to benefit from the imaginative
impartation of knowledge. This function of a university is
depreciated, as I argue in the next sections, to the extent that
preferential admissions programs, which are based on
compensation for "societal" discrimination, involve the selection of
students simply on the basis of race.
3. COMPENSATION FOR SOCIETAL DISCRIMINATION
A discussion on compensatory justice figures prominently in
the DeFunis and Bakke cases. The issue in those cases is not
whether a university should compensate for the present effects of
past, specific, and identifiable instances of discrimination, but
whether it should be allowed to select students simply on the
basis of race in order to compensate for "societal" discrimination.
The jurisprudence of the Supreme Court in the field of school
desegregation reveals that federal courts require, as a
constitutional matter, that specific identifiable instances of racial
discrimination be remedied. The preferential admissions
programs in the DeFunis and Bakke cases are not introduced to
combat specific and identifiable discrimination but are based on
the fact that Blacks and other minority groups have been denied
access to legal and medical education in the past coupled with the
judgment that present under-enrollment is caused by societal
discrimination which cannot be identified.1 85 The issue in these
cases is an important one because compensation for societal
discrimination changes the proper function of a university and its
professional schools.
Proponents of preferential admissions programs argue that,
even though the specific source of discrimination cannot always
be identified, it does not remove the government's substantial
185. In Bakke, the University of California might have avoided troublesome

litigation by making findings of specific past discrimination coupled with a
determination that this discrimination resulted in a current denial of access to the
educational services offered by the university. Such a finding presumably would
have resulted in a declaration that the quota-based Davis system was constitutional.
However, the University could not present a factual record, which would prove
identifiable instances of discrimination. Rather, it wanted the courts to rule on the
permissibility of preferential admission programs to remedy societal discrimination.
interest in redressing its consequences. 186 They argue that the

interest is converted simply from a constitutionally required one
(in the case of specific, identifiable discrimination) to a
constitutionally permissible one (in the case of societal
discrimination). One of these proponents, Professor Robert A.
Sedler, argues that the courts do not have merely the power to
remedy specific, identifiable instances of discrimination, but may
order preferential admissions programs to remedy societal
discrimination:
Insofar as the social history of racism is reflected in identified
discrimination by the government or by private entities
legally prohibited from engaging in such discrimination, the
government has a valid and substantial interest in
eliminating the present consequences of that discrimination.
Where the government itself has engaged in identified past
discrimination, it has an affirmative duty to take action to
overcome the discrimination's continuing effects. Because
overcoming the present consequences of identified past
discrimination is so clearly a valid and substantial
governmental interest, litigative efforts must continue to
focus on proving past discrimination. To the extent that
those efforts are successful, we will have come some distance
toward the goal of eliminating the persistent effects of racism
in this country. Nonetheless, in order to cover the remaining
distance we must make it equally clear that the government
has an overriding interest in reversing the present effects of
past discrimination that is not specifically identified. The
government is constitutionally permitted to use race-
conscious criteria in an appropriate way whenever the use of
such criteria is necessary to advance the objective of
providing equal participation for blacks in the benefits of
American life, and thus to redress the present consequences
of the social history of racism which have denied them such
186. See, e.g., Douglas Scherer, Bakke Revisited, HUMAN RIGHTS, Sept. 1978, at 27;
Jon Van Dyke, Bakke v. The Regents of the University of California, 3 HASTINGS
CONST. L.Q. 891, 896 (1976) ("[iun fact, no alternative less drastic than a racially-
based affirmative action program can be devised because the problem that creates
the need for such a program is that of racial discrimination"). Affirmative action
relief in employment cases "need not be limited to the identifiable persons denied
employment in the past for the presence of identified persons who have been
discriminated against is not a necessary prerequisite to ordering affirmative relief in
order to eliminate the present effects of past discrimination." Davis v. County of Los
Angeles, 566 F.2d 1334, 1343 (9th Cir. 1977).
participation. It is clear, as the prior discussion indicates,

that the admittedly valid and substantial governmental
interest in "ameliorating, or eliminating where feasible, the
disabling effects of identified discrimination" essentially
involves overcoming the present consequences of particular
aspects of the social history of racism. If the government
may constitutionally be required to take action involving the
use of race-conscious criteria in order to redress the present
effects of its identified past discrimination, there is no logical
reason why it should not be permitted to take such action in
order to eliminate the present effects of such discrimination
7
by the society as a whole.1
The question of whether compensation for identified
instances of discrimination, to which Sedler refers, may be
extended to "the present effects of past discrimination that is not
specifically identified" has been extensively discussed in Bakke by
Justices Brennan, White, Marshall, and Blackmun, who are
known in the literature as the Brennan Four, and by Justice
Powell. For the Brennan Four, the main rationale for
preferential admission is the existence of continued "societal"
discrimination. Justice Marshall supplied the evidence:
The position of the Negro today in America is the tragic but
inevitable consequence of centuries of unequal treatment.
Measured by any benchmark of comfort or achievement,
meaningful equality remains a distant dream for the Negro.
A Negro child today has a life expectancy which is shorter by
more than five years than that of a white child. The Negro
child's mother is over three times more likely to die of
complications in childbirth, and the infant mortality rate for
Negroes is nearly twice that for whites. The median income
of the Negro family is only 60% that of the median of a white
family, and the percentage of Negroes who live in families
with incomes below the poverty line is nearly four times
greater than that of whites. When the Negro child reaches
working age, he finds that America offers him significantly
less than it offers his white counterpart. For Negro adults,
the unemployment rate is twice that of whites, and the
unemployment rate for Negro teenagers is nearly three times
that of white teenagers. A Negro male who completes four
187. Robert A. Sedler, Beyond Bakke: The Constitution and Redressing the Social
History of Racism, 14 Harv. C.R. - C. L. L. Rev. 133, 155-56 (1979).
years of college can expect a median annual income of merely

$110 more than a white male who has only a high school
diploma. Although Negroes represent 11.5% of the
population, they are only 1.2% of the lawyers and judges, 2%
of the physicians, 2.3% of the dentists, 1.1% of the engineers
and 2.6% of the college and university professors. The
relationship between those figures and the history of unequal
treatment afforded to the Negro cannot be denied. At every
point from birth to death the impact of the past is reflected in
the still disfavored position of the Negro. In light of the sorry
history of discrimination and its devastating impact on the
lives of Negroes, bringing the Negro into the mainstream of
American life should be a state interest of the highest order.
To fail to do so is to ensure that America will forever remain
188
a divided society.
Justice Brennan also addressed the relationship between
past societal discrimination and present deprivation. He says
that the University's purpose in remedying the effects of past
societal discrimination is strong enough "where there is a sound
basis for concluding that minority under-representation is
substantial and chronic, and that the handicap of past
discrimination is impeding access of minorities to the Medical
School."" 9 Thus, for Justice Brennan, substantial under-
representation removes the need to prove specific, identifiable
instances of discrimination. For him, race-conscious remedies,
including quotas, might be used to remove inequality between
racial groups if there is reason to believe that such inequality is
itself the product of societal discrimination. Brennan's position is
premised upon the belief that but for past societal discrimination,
the percentage of Blacks and other minorities admitted to
professional schools would approximate their percentage in the
total population.
In contrast, Justice Powell argues that it is constitutionally
impermissible to use racial classifications as a remedy for past
societal discrimination even if to do so would facilitate social
planning. He recognizes that the state has a "legitimate and
substantial interest in ameliorating ... the disabling effects of
identified discrimination." 9 0 But he argues that there is no
189. Id. at 362.
190. Bakke, 438 U.S. at 307.
justification for a racial classification, which imposes

disadvantages upon persons like Bakke with the sole purpose of
helping certain racial groups in society perceived as victims of
societal discrimination. Such a policy rests on what he calls "an
amorphous concept of injury that may be ageless in its reach into
the past." 9 ' Justice Powell emphasizes that compensation for
societal discrimination as opposed to identifiable discrimination
may harm innocent persons:
We have never approved a classification that aids persons
perceived as members of relatively victimized groups at the
expense of other innocent individuals in the absence of
judicial, legislative, or administrative findings of
constitutional or statutory violations .... After such findings
have been made, the governmental interest in preferring
members of the injured groups at the expense of others is
substantial, since the legal rights of the victims must be
vindicated. In such a case, the extent of the injury and the
consequent remedy will have been judicially, legislatively, or
administratively defined. Also, the remedial action usually
remains subject to continuing oversight to assure that it will
work the least harm possible to other innocent persons
competing for the benefit. Without such findings of
constitutional or statutory violations, it cannot be said that
the government has any greater interest in helping one
individual than in refraining from harming another. Thus,
the government has no compelling justification for inflicting
such harm.
Petitioner does not purport to have made, and is in no
position to make, such findings. Its broad mission is
education, not the formulation of any legislative policy or the
adjudicationof particularclaims of illegality .... Hence, the
purpose of helping certain groups whom the faculty of the
Davis Medical School perceived as victims of "societal
discrimination" does not justify a classification that imposes
disadvantages upon persons like respondent, who bear no
responsibility for whatever harm the beneficiaries of the
special admissions program are thought to have suffered. To
hold otherwise would be to convert a remedy heretofore
reserved for violations of legal rights into a privilege that all
institutions throughout the Nation could grant at their
191. Bakke, 438 U.S. at 307.

pleasure to whatever groups are perceived as victims of

societal discrimination. That is a step we have never
approved. 192
As is apparent from the above quotation, Justice Powell
believes that universities should not be in the business of
compensating for societal discrimination because their proper
function is education. The admission of minority applicants to
universities solely on the basis of their race would, in his opinion,
transform a university into an institution which is used to solve
the ills of society, namely under-enrollment of minority students
in professional schools. Hence, he argues that the introduction of
preferential admissions programs, which impose disadvantages
upon innocent applicants for admission is not justified. Thus, the
conflict between the two merit systems clearly has a pivotal place
in Justice Powell's discussion because he concentrates on the
question of whether the use of race as a group characteristic is
allowed simply to bring about an increase in minority enrollment.
The thrust of Justice Powell's argument against
compensation for societal discrimination is based on his
assessment that the introduction of preferential admissions
programs is unrelated to the proper function of a university. He
realizes that these programs result in the exclusion of some
majority applicants who genuinely would have contributed to and
profited from an involvement with a university's proper function.
The expectation that the introduction of preferential admissions
programs results in disadvantages for innocent persons may also
be the principal reason why Justice Powell strongly argues for the
application of the strict scrutiny test. As previously seen, this
test requires that the relationship between the racial
classification involved in these programs and its purpose, namely
compensation for societal discrimination, be genuine. If it were
possible to establish that there exists no genuine relationship
between the racial classification and compensation, then
preferential admissions programs would fail this test because
some members of minority groups may be selected simply on the
basis of their race without themselves having been discriminated
against. The argument is that, in the absence of a genuine
relationship between preferential admissions programs and
compensation for societal discrimination, the number of
192. Bakke, 438 U.S. at 307-10 (citations omitted) (emphasis added).

unsuccessful innocent applicants for admission is increased

unjustifiably. Thus, the application of the strict scrutiny test
ensures that the possibility of innocent persons being hurt is
reduced to a minimum by insisting on a genuine relationship -
the closest possible relationship between preferential admissions
programs and compensation for societal discrimination. The
genuineness of this relationship can be prejudiced in two ways:
first, because preferential admissions programs can suffer from
both over- and under-inclusiveness and, second, because these
programs can result in some persons having to pay a
disproportionate amount of the costs while "compensation" by
judicial process, of necessity, will not reach the needy. These
193
issues are discussed in the following sections.
4. THE ISSUE OF OVER- AND UNDER-INCLUSIVENESS

One of the most vexatious objections to a preferential
admissions program, based on compensation for the present
effects of societal discrimination is that it suffers from both over-
inclusiveness and under-inclusiveness. 194 The problem of over-
inclusiveness arises from the fact that compensatory benefits are
made available on the basis of membership in preferred groups
defined by "race" or "ethnic background," which are used as
proxies for disadvantage. However, some members of these
preferred groups may not actually be people who themselves
either have been or are currently disadvantaged. Nevertheless,
they profit from compensatory benefits because disadvantage is
determined by reference to race or ethnic background and not by
other characteristics, which more accurately determine the extent
to which a person is disadvantaged on account of societal
discrimination. However, proponents of preferential admissions
programs, in deciding that some designated racial and ethnic
groups are eligible for preferential admission, adopt what has
been called by Justice Powell a "two-track" theory which involves
193. My argument in Sections 4 and 5 closely parallels Professor Alan H.

Goldman's exposition on these matters in his book, Justice and Reverse
Discrimination. However, while Goldman is concerned more with arguments dealing
with justice, I show that preferential admission programs, which are based simply on
the basis of one's race, are in conflict with the proper function of universities. Even
though my analysis differs from his in the methodological approach taken, our
conclusions largely yield the same results.
194. Martin H. Redish, Preferential Law School Admissions and the Equal
Protection Clause: An Analysis of the Competing Arguments, 22 UCLA L. REV. 343,
396 (1974).
more benefits for some individuals belonging to groups defined by

race or ethnic background. 9 5 For example, in DeFunis, no effort
was taken to find out whether applicants who were admitted
preferentially were deprived, culturally or economically, as a
result of past acts of discrimination against the group of which
they were members: applicants were allowed to indicate their
minority status on the application form and a separate set of
admission standards was then applied to them. It may be
possible, under such a program, for the son of a successful Black
doctor, who may have enjoyed the best available educational
opportunities, to be admitted on a preferential basis, whereas the
son of a poor White West-Virginian laborer may be excluded from
the program."' This situation may result in the admission of
applicants who have never suffered the effects of racial
discrimination practiced in the past against their group. The
importance of this is clear: over-inclusiveness may reduce the
number of places for which DeFunis, Bakke, and all other
comparable applicants would be able to compete. Therefore, it is
necessary to establish a link between past acts of discrimination
and actual deprivation in order to include, among the
beneficiaries of preferential admissions programs, only those
individuals who have been harmed.
The establishment of such a link involves an examination of
questions of how far back into the past the search for
discrimination should be made and whether the scope of the
compensation should be determined by the nature and the extent
of the wrong. Failure to determine these questions may lead to
the adoption of a preferential admissions program which is over-
broad and over-inclusive. First, the further back into history the
search for discrimination is made, the more likely that a program
is over-inclusive because it may be more difficult to prove a link
between past discrimination and actual deprivation.
Furthermore, this search raises the question of whether past
discrimination should include acts, which are only now perceived
to be reprehensible, but were not recognized as reprehensible in
the past. Therefore, one should spell out what constitutes a
wrong. Second, an over-inclusive program also exists when the
scope of the remedy greatly exceeds the nature of the past
195. Bakke, 438 U.S. at 295-97.

196. A.A. Morris, Equal Protection, Affirmative Action and Racial Preferences in
Law Admissions, 49 WASH. L. REV. 1, 48 (1973); DeFunis v. Odegaard, 507 P.2d
1169, 1184 (1973).
wrongs. For example, the minority population of the State of

Washington, at the time of the DeFunis case, was approximately
5.2% of the total population. However, as the result of the
particular minority admissions program used in DeFunis, more
than 11% of the law students are minority members. 197 Hence,
this type of over-inclusiveness results in an increase in the total
number of majority exclusions at least for that region. This
argument suggests that percentages are meaningful indicators of
disadvantage in the case of over-inclusive classifications because
they reveal the extent to which innocent majority applicants are
hurt. It does not follow from this argument that statistical
under-enrollment proves racial discrimination; such inference
would involve the formal fallacy of illicit conversion.
Preferential admissions programs may also be under-
inclusive. 19 This problem flows from the fact that race or ethnic
background is considered as reliable indicators of disadvantage
caused by societal discrimination. Consequently, other groups,
which can be defined by characteristics other than race or ethnic
background, are excluded from preferential admissions programs
even though some of their members may be able to point to
disadvantage for which societal discrimination is patently
responsible. Discrimination practiced in the past against
homosexuals and some religious groups illustrates this point.
Also, members of non-preferred minority groups, who have been
discriminated against in the past, may not be included in the
program. For example, in DeFunis, Asian Americans were not
included in the program, even though they have suffered societal
discrimination in the past. It is enough to mention the societal
discrimination against Chinese Americans in the second half of
the nineteenth century in San Francisco, which culminated in
1885 in the denial of all applications by Chinese Americans to
carry on laundry businesses in wooden buildings; all the
applications by Caucasians, with one exception, were granted. 199
The Supreme Court of Washington stated that a sufficient
number of Asian Americans could be admitted under the normal
standards of admission, and therefore there was no need to give
them preference:
197. DeFunis, 507 P.2d at 1176; Morris, supra note 196, at 37-38.
198. Gareth Evans, Benign Discrimination and the Right to Equality, 6 FED. L.
REV. 26, 29 (1974).
199. Yick Wo v. Hopkins, 118 U.S. 356 (1886).
[T]he purpose of the racial classification here is to give

special consideration to those racial minority groups which
are underrepresented in the law schools and legal profession,
and which cannot secure proportionate representation if
strictly subjected to the standardized mathematical criteria
for admission to the law school. In selecting minority groups
for special consideration, the law school sought to identify
those groups most in need of help. The chairman of the
admissions committee testified that Asian-Americans, e.g.
were not treated as minority applicants for admissions
purposes since a significant number could be admitted on the
same basis as general applicants. In light of the purpose of
the minority admissions policy, the racial classification need
not include all racial minority groups. The state may identify
and correct the most serious examples of racial imbalance,
even though in so doing it does not provide an immediate
solution to the entire problem of equal representation within
20 0
the legal system.
Thus, in the opinion of the court, Asian Americans had been able,
through their own efforts, to overcome their minority status and,
consequently, were not entitled to preference. 20 ' The conclusion,
which may be drawn, is that in the court's opinion, the inclusion
of Asian Americans among the groups to be admitted
preferentially, rather than being under-inclusive, would result in
over-inclusiveness because they did not suffer any present effects
of past societal discrimination.
The court's decision that not all under-represented minority
groups are entitled to equal representation in the legal system,
results in some groups, but not others, receiving preferred
treatment. The decision thereby condones the two-class theory,
which involves more constitutional protection for preferred
minorities than for majority groups. Nevertheless, there does not
seem to be a compelling reason why the designated minority
groups, namely Black Americans, Chicano Americans, American
200. DeFunis, 507 P.2d at 1184.

201. This defense of under-inclusive classifications is reminiscent of the similar
defenses of under-inclusiveness by the Supreme Court of the United States when it
stated in Railway Express Agency v. New York, that "[it is no requirement of equal
protection that all evils of the same genus be eradicated or none at all." 336 U.S.
106, 110 (1949). However, whenever strict scrutiny is applied, it may reasonably be
expected that a Court would treat seriously an allegation that a classification is
under-inclusive.
Indians, and Filipino Americans are selected for preferential

admission to the law school. There are undoubtedly many
difficulties associated with attempts to define a preferred
minority. While these difficulties do not constitute arguments
against preferential admission to universities and professional
schools, they nevertheless illustrate the necessity of establishing
standards capable of defining a preferred minority. It is
important to define a preferred minority because groups, which
do not come within the definition, are not allowed to compete for
a number of places, which are allocated on the basis of group
membership." 2 Professor Robert M. O'Neil has argued that "[a]s
a constitutional matter, it does not seem necessary that all
minority groups be aided equally,"20 3 but the point is that
contradictory claims are made by racial groups once they are
aided unequally. Justice Douglas in his dissenting opinion in
DeFunis expressed his reservation regarding the selection of
some preferred minority groups as follows:
The reservation of a proportion of the law school class for
members of selected minority groups is fraught with similar
dangers, for one must immediately determine which groups
are to receive such favored treatment and which are to be
excluded, the proportions of the class that are to be allocated
to each, and even the criteria by which to determine whether
20 4
an individual is a member of a favored group.
The power of a university to determine which groups
deserve, using Justice Powell's expression in Bakke, "heightened
judicial solicitude,"20 5 may have the paradoxical result that
Blacks are denied admission to the University if, for some reason,
other racial or ethnic minority groups are preferred. Such a
result would conflict with the Supreme Court decision in Sweatt
v. Painter,2 °6 which held that a state university may not deny
202. F. Busi, Racial Balance in Schools, PATTERNS OF PREJUDICE, Nov.-Dec. 1975,

at 19-20.
203. Robert M. O'Neil, Racial Preference and Higher Education: The Larger
Context, 60 VA. L. REV. 925, 942 (1974) [hereinafter O'Neil, Racial Preference].
204. DeFunis v. Odegaard, 416 U.S. 312, 338 (1974) (Douglas, J., dissenting). Cf.
Alevy v. Downstate Med. Ctr., 348 N.E.2d 537 (1976) (holding that in certain
circumstances reverse discrimination is constitutional, but it must be shown that a
substantial state interest justifies the preferential treatment and that no less
objectionable alternative will serve the same purpose).
206. Sweatt v. Painter, 339 U.S. 629 (1950).
Blacks admission to its law school on the basis of their race. In

Sweatt, petitioner, a Black student, was denied admission to the
state-supported University of Texas Law School.2" 7 The State
had established a law school for Blacks in conformity with the
"separate but equal" doctrine, which in 1950, was not yet
overruled by Brown L The Black student refused enrollment in
the Black law school because, in his opinion, the school could
never offer black educational facilities equal to those of the White
school which "possesses to a far greater degree those qualities
which are incapable of objective measurement but which make for
greatness in a law school." 0 8 Thus, if a university were allowed
to single out some racial groups for preferential admissions, then
Sweatt, which stands for the proposition that a person may not be
denied legal education on the basis of his race, would have been
overruled implicitly.
As seen before, the strict scrutiny test is applied when racial
classifications are made in order to establish whether a genuine
relationship exists between the classification and its purpose.
This relationship is affected seriously in the cases of over- and
under-inclusiveness because there is an alternative to over- and
under-inclusive classifications, which brings about the closest
possible relationship between past discrimination and actual
deprivation. 20 9 It is an alternative that is less restrictive upon
the legitimate expectations of students that selection for
admission will be based on the basis of characteristics, which are
relevant to advanced academic university work.
Over- and under-inclusiveness could be avoided by
individual testing of candidates in an effort to ascertain who is
suffering the effects of past discrimination. However, individual
testing of candidates for admission is clearly impracticable
because of the high expense and the loss in administrative
efficiency involved. But this raises the question of whether
administrative efficiency is a sufficient reason for justifying
either over- or under-inclusiveness. Professor Alan Goldman
describes the argument for efficiency as follows:
Favored treatment for groups is justified by the greater
207. Sweatt, 339 U.S. at 631.

208. Id. at 634.
209. Robert M. Bastress, Jr., Note The Less Restrictive Alternative in Constitutional
Adjudication:An Analysis, a Justification,and Some Criteria,27 VAND. L. REV. 971,
997 (1974).
administrative feasibility of such a program, as compared

with the high cost and impracticability of administering
compensatory justice on an individual basis. Thus, while
there is only a high correlation between being black, for
example, and having suffered discrimination and so being
deserving of compensation, the balance of justice in practice
favors preferential treatment for the whole group, even
though such a policy will occasionally result in undeserved
benefits. The only alternative policies seem to be: award of
deserved compensation in the great majority of cases, with
occasional undeserved benefit and hence injustice to white
job applicants; or compensation on an individual basis, which
would require demonstration of past injustice in court or
before a special administrative body, so that the cost and
difficulty of the operation would result in far fewer awards of
deserved reparation. It is better, the argument holds, to
award compensation that is deserved in almost all cases than
to have a program that in practice would amount to almost
no compensation at all; in effect, a policy that would not be
2 10
accepted in an ideally just world becomes best in practice.
The difficulty with this argument, as recognized explicitly by
Goldman, is that administrative efficiency may result in the
admission of minority group members who were never
discriminated against and in the exclusion of majority applicants
who, under traditional selection criteria, would have been
admitted. Administrative efficiency as a justification for over- or
under-inclusiveness cannot hide the fact that admission simply
on the basis of one's race frustrates attempts to select applicants
who are most able to contribute to and to profit from the
imaginative impartation of knowledge in a university.
A second objection to a preferential admissions program
based on compensation for societal discrimination is that the
majority members unequally share the burdens of compensation
and that the benefits of compensation are distributed unequally
among individual minority members. The thrust of the argument
is that, if compensation for societal discrimination is approved,
then there should be additional rules specifying an individual's
contribution to the compensation. For example, there is a
problem if only some individuals are asked to make sacrifices to
210. GOLDMAN, supra note 129, at 94-95.

compensate some members of preferred groups. If discrimination

is "societal," compensation should be paid by the whole society,
not just a few individuals. The cost of compensatory preferences
should be shared. As matters now stand, some persons are
required to repay a disproportionate share of the total debt.2 1 '
Furthermore, if benefits go to specifically preferred groups, then
there should be additional rules specifying the relationship
between compensation to groups and the distribution of that
compensation to individual members belonging to these groups.
Indeed, as observed before, Professor Thomas Sowell has argued
that the majority of students who are refused admission are
likely to come from the bottom of the White distribution and the
minority members admitted are likely to come from the top of the
minority distribution.2 12 He argues that there is a forced transfer
of benefits from the most disadvantaged majority applicants to
members of a minority who are least in need of preferential
admission because it could be expected, reasonably, that
advantaged minority students would be able to gain admission to
some professional school anyway. Goldman also makes the same
argument:
It is clear that when preferential treatment is advocated for
whole minority groups, the most competent members at each
level will be chosen for admissions and hiring. This seems
necessary to protect efficiency and to give them a reasonable
chance at succeeding in their positions. Furthermore, if
justice is linked to efficiency, as I claimed in the previous
chapter, so that the most competent person has a prima facie
right to a position for which he or she applies, there may
seem nothing wrong with applying this distributive rule
within the minority group singled out for preference. What is
wrong is that the principle of compensation and the
distributive principle of hiring the competent pull in opposite
directions here. If the reason why minority-group members
tend to be less qualified for various positions is to be found in
prior patterns of discrimination, then those who are now
most qualified will tend to be those who have been
discriminated against least in the past. Thus a policy of
preferential treatment directed toward groups as a whole will
invert the ratio of past harm to present benefit, picking out
211. GOLDMAN, supra note 129, at 115.

212. Sowell, supra note 129, at 42.
just those individuals for present preference who least

deserve compensation relative to other members. Those
involved in university teaching have had a firsthand view of
how such policies operate to give preference in hiring to
women just coming to the job market from prestigious
graduate schools - who just as likely were given preference at
the prior level as well - and how middle-class minority-group
members who have had a relatively easy time of it benefit
more by admissions policies than others in the same group
2 13
who have been severely oppressed in the past.
Professor Barry Gross also made the argument that preferential
admissions programs do not benefit the least advantaged
minority applicants:
Furthermore, since reverse discrimination is not intended as
a complete revolutionary upheaval with everything going to
the formerly injured, there must come a point below which
reverse discrimination ceases to be applied. Only those above
this cutoff point will benefit. It is reasonable to assume that
more often than not these will be precisely the persons best
able to compete, those closest to the top. But the others -
who by hypothesis are both just as worthy of compensation
and most in need of help - will get neither. Is this not a
ludicrous situation? We find that a scheme whose sole
purpose is to provide compensation to entire classes of
persons reaches only to a few members of those classes, and
214
by its very nature must be confined to the few.
If the argument of these writers is correct, then this means
that compensation for societal discrimination may not reach the
needy because of the absence of criteria specifying the
distribution of compensatory preferences to individual members.
Thus, it appears that additional rules are necessary because it
does not follow that the group is compensated if only some group
members are compensated.215 Also, benefits derived from a
preferential admissions policy would not be distributed equitably
among minority group members because older minority members
probably would be under-represented. This is significant since it

214. BARRY R. GROSS, DISCRIMINATION IN REVERSE. IS TURNABOUT FAIR PLAY? 112
(N.Y. Univ. Press 1978).
215. Robert Simon, Preferential Hiring: A Reply to Judith Jarvis Thomson, in
EQUALITY AND PREFERENTIAL TREATMENT 42 (Marshall Cohen, et al., eds. 1977).
might be reasonably assumed that older Blacks have suffered

more from discrimination than younger Blacks.2 16 This objection
brings out the fact that a preferential admissions program aimed
at remedying societal discrimination may be unjust with regard
to both majority and minority members.
5. COMPENSATION FOR PAST, SPECIFIC, IDENTIFIABLE ACTS

OF DISCRIMINATION
The conclusion to be drawn from the previous section is that

compensation should be limited to specific, identifiable instances
of discrimination lest disadvantages be imposed on members of
both the majority and minority. Even though the rule that
compensation should be limited to specific acts of discrimination
for the benefit of minority members who have been harmed is
clear, its practical application is fraught with many problems
because it is so easy, unintentionally, to create over- and under-
inclusive classifications.217
First, there is the question of who should pay the
compensation. The obvious answer would be the perpetrator of

217. The importance of achieving the closest possible relationship between
compensation for the present effects of past identifiable discrimination and a
remedial racial classification was also discussed in Fullilove v. Klutznick, 448 U.S.
448 (1980). In this case, the "minority business enterprise" (MBE) provision of the
Public Works Employment Act of 1977, which required that, in the absence of an
administrative waiver, at least 10% of federal funds granted for local public works
projects must be used by the grantee to procure services or supplies from businesses
owned by members of minority groups (defined as Negroes, Spanish-speaking,
Oriental Indians, Eskimos and Aleuts), was challenged. Id. at 455. Chief Justice
Burger, who wrote the judgment of the Court emphasized that "any congressional
program that employs racial or ethnic criteria to accomplish the objective of
remedying the present effects of past discrimination" must be "narrowly tailored to
the achievement of that goal." Id. at 480. Nevertheless, it was alleged by the
respondent that the program was under-inclusive in the sense that it limited its
benefits to designated minority groups "rather than extending its remedial objectives
to all businesses whose access to government contracting is impaired by the effects of
disadvantage or discrimination." Id. at 450. Chief Justice Burger, meeting this
allegation, argued that "a legislature may take one step at a time to remedy only part
of a broader problem." Fullilove, 448 U.S. at 485. He also said that the likelihood of
the program being over-inclusive was minimal because of the existence of an
administrative scheme, which provided for waiver and exemptions from the
application of the MBE provision. Fullilove, 448 U.S. at 487. Throughout his
judgment, Chief Justice Burger stressed that it was the prime function of Congress
to design new methods in an effort to achieve equality of economic opportunity. For a
discussion of this case, see Howard E. Van Benthuysen, Minority Business Enterprise
Set-Aside: The Reverse DiscriminationChallenge, 45 ALB. L. REV. 1139 (1981).
the discriminatory act or acts. However, more likely than not, the
perpetrator cannot be located or identified. If the perpetrator's
successor were to be held responsible, then doubts would be cast
on the viability of the rule that only specific instances of racial
discrimination be compensated. Indeed, if it is accepted that a
successor could be liable for discriminatory acts committed by a
predecessor, then the point in time at which the discriminatory
act occurs becomes irrelevant, resulting in the difficulty of
establishing a nexus between the act of racial discrimination and
the injured party. Such a compensation system would be
enormously difficult to initiate. Indeed, it might be totally
inoperable, and it might amount to compensation for societal
discrimination rather than for instances of specific
discrimination. Second, there is the question of the moral
principle in asking third parties to compensate for specific acts of
discrimination committed by a predecessor. The mere fact that
one happens to be a successor is, in itself, not a sufficient basis for
liability. However, if the discriminatory policy is taken over or
some clear unearned benefits of the policy have passed to the
successor, then a persuasive case might be made in favor of
finding the successor liable. Naturally, where there is evidence of
the continuation of the application of a discriminatory practice,
there would be a specific act of discrimination giving rise to
compensation of the party discriminated against.
Even if a specific perpetrator is located, compensation does
not become a simple matter. Major problems still arise because of
the fact that there is a time-span between the original
discrimination against a person on the basis of his race and the
actual compensation.2 1 In the obvious or simplest case, the
original discriminatory act consists of the fact that a minority
member who was as qualified as, or more qualified than, a
majority member is refused admission to a professional school or
is not given an appointment solely on the basis of his race. It is
unlikely that at the time of compensation he or she will be as
qualified as, or more qualified than, the persons who then apply.
Indeed, there is a strong possibility that applicants who were
refused admission solely on the basis of race may not be as
qualified as the persons who apply at the time of compensation.
Indeed, in the past, admission to most professional schools was by
open enrollment. As applications for admission increased, schools

raised their admission standards beyond the minimum level

necessary to ensure completion of the course of study. Thus, it is
likely that some minority members may not now be selected
because the academic qualifications possessed by today's
applicants exceed those of past applicants. This is an important
consideration because innocent third parties may have to pay the
price of compensation. If less-qualified minority members were
selected at the time of compensation, would the displaced
majority members then have the right to claim compensation
from the perpetrator on the basis that he discriminated against
them on the basis of their race? Goldman points out that this
would lead to regression in compensation claims, and it would
make us all petitioners for compensation and favors:
The reason is that the rights of the white males being
overridden or denied are of exactly the same type as the
rights formerly denied to victims of the original
discrimination, and it is not clear on the surface why similar
compensation should not be owed this second class of
individuals. In a tight market for desirable positions, a
person may have only one opportunity to attain the type of
position he both wants and for which he is most qualified,
and if denial in the case of the minority candidate is grounds
for compensating him, how can we deny the same right to
compensation to the white male, when his denial seems
219
exactly the same?
That Goldman's fears are not merely speculation is well
illustrated by McAleer v. American Telephone and Telgraph
Co.,220
a reverse sex discrimination case. Plaintiff McAleer, a
male, was denied promotion by the American Telephone and
Telegraph Company even though he was entitled to it under the
provisions of a collective bargaining agreement. The job was
given to a less qualified, less senior female solely because of her
sex.221 The Company justified its actions by pointing to a consent
judgment containing a preferential hiring program, which
obligated it to favor female employees regardless of seniority, to
eliminate past sex discrimination.222 The district judge

220. McAleer v. Am. Tel. & Tel. Co., 416 F. Supp. 435 (1976).
221. Id. at 436.
222. EEOC v. Am. Tel. & Tel. Co., 365 F. Supp. 1105 (E.D. Pa. 1973), affd in part,
506 F.2d 735 (3d Cir. 1974) (holding that AT&T disregarded its old standard of
acknowledged the constitutionality of the policy of reverse

discrimination, but also ruled that the disadvantaged employee
was entitled to compensation rather than promotion.2 23
He relied for support on Franks v. Bowman Transportation
Co.,224 where the Supreme Court referred to the possibility of
compensation with monetary damages of innocent employees who
were affected adversely by the employer's conduct.2 25 This
solution, however adequate it may seem, raised the problem of
whether it was just to compel a perpetrator of an injustice (or his
successor) to compensate both the victim and an innocent third
party. McAleer, of course, involved a preferential hiring program
to eliminate past societal sex discrimination. The Court's
decision may be justified by pointing to the pervasiveness of the
sex discrimination. However, the decision is less persuasive if
compensation is claimed for a specific instance of discrimination.
However, the difficulties associated with identifying specific
and identifiable instances of discrimination do not affect the well-
established principle that race-conscious programs may be
required where specific past discrimination can be proved.22 6
Justice Powell's judgment in Bakke reaffirms that there is a
profound difference between the use of racial classifications to
compensate for societal discrimination and racial classifications
that respond to identifiable instances of discrimination.
Compensation for societal racial discrimination, while compatible
with the second conception of merit (according to which race as a
group characteristic may be used to bring about a desirable social
result), involves depreciation in the proper function of a
promoting the best qualified employee and instead implemented a policy that chooses
among qualified female or minority applicants, if necessary, to meet the goals and
time tables of the consent agreement.).
223. McAleer, 416 F. Supp. at 436.
224. Franks v. Bowman Transp., 424 U.S. 747 (1976).
225. Id. at 777 n.38, 780-81. Chief Justice Burger, concurring in part and
dissenting in part, stated that "relief at the expense of wholly innocent employees
can rarely, if ever, be equitable if that term retains traditional meaning." Id. at 780-
81.
226. Constance Baker Motley, From Brown to Bakke, the Long Road to Equality, 14
HARV. C.R.-C.L.L. REV. 315, 326 (1979); see Regents of Univ. of Cal. v. Bakke, 438
U.S. 265, 325 (1974) (Brennan, J., dissenting) ("Government may take race into
account when it acts, not to demean or insult any racial group, but to remedy
disadvantages cast on minorities by past racial prejudice, at least when appropriate
findings have been made by judicial, legislative, or administrative bodies with
competence to act in this area.").
university, which is the imaginative impartation of knowledge.

This theme will be elaborated in the next Part, in which forward-
looking arguments, including utilitarian considerations, for
justifying preferential admissions programs based on race will be
examined.
VII. PREFERENTIAL ADMISSIONS PROGRAMS:

FORWARD-LOOKING ARGUMENTS
1. INTRODUCTION
In the preceding Part, I argue that compensation for societal
discrimination does not justify the introduction of preferential
admissions programs because admission of students simply on
the basis of race results in the displacement of some students who
are better equipped to contribute to or to benefit from their
involvement with a university's function. Some proponents of
preferential admissions programs, however, argue that the
preferential admission of minority students should not be seen as
a way of compensating for past injustices, and for them these
arguments are not decisive. Instead, they provide forward-
looking arguments to justify these programs. For example, some
writers argue that the preferential admission of minority
students should be seen as a way of preventing future violations,
which inevitably would occur otherwise, and for improving the
socio-economic position of minorities.2 2 7 Other writers emphasize
228
the necessity of promoting social peace and racial integration.
In the main, these arguments are based on the assumption that
227. Michael D. Bayles, Compensatory Reverse Discrimination in Hiring, 2 SOC.

THEORY AND PRAC. 301, 309-11 (1972) (advocating phasing out reverse
discrimination policies by gradually lessening the minority factor); Bernard Boxill,
The Morality of Reparation, 2 Soc. THEORY AND PRAC. 113, 117 (1972) (examining
the distinction between compensation and reparation and arguing compensation
cannot be a substitute for reparation as both have social justice benefits); John
Kaplan, Equal Justice in an Unequal World: Equality for the Negro - The Problem of
Special Treatment, 61 Nw. U.L. REV. 363, 366 (1966) (discussing the various
arguments made for obtaining true equality for minorities through special
treatment); Thomas Nagel, Equal Treatment and Compensatory Discrimination, 2
PHIL. & PUB. AFF. 348, 361 (1973) (stating a strong argument exists "for accepting
reverse discrimination, not on grounds of justice but on grounds of social utility");
George Sher, Reverse Discrimination,The Future,and the Past,ETHICS, Oct. 1979, at
81, 82-83 (discussing the concept of forward-looking justification for reverse
discrimination with its aim of promoting desirable forms of social change); Judith
Jarvis Thomson, PreferentialHiring, 2 PHIL. & PUB. AFF. 364, 382 (1973) (arguing
that preferential hiring will make amends for past wrongs).
228. Norman Daniels, Merit and Meritocracy, 7 PHIL. & PUB. AFF., 206, 214 (1978).
the overall gains to society flowing from these programs exceed

the overall losses with the consequence that society is better off
as a whole, even if some individuals are worse off. In what sense
better off? Professor Ronald Dworkin has indicated that society
could be better off as a whole either in a utilitarian sense or in an
ideal sense:
There are, in the first place, two distinct senses in which a
community may be said to be better off as a whole, in spite of
the fact that certain of its members are worse off, and any
justification must specify which sense is meant. It may be
better off in a utilitarian sense, that is, because the average
or collective level of welfare in the community is improved
even though the welfare of some individuals falls. Or it may
be better off in an ideal sense, that is, because it is more just,
or in some other way closer to an ideal society, whether or not
average welfare is improved. The University might argue,
for example, that increasing the number of black lawyers
reduces racial tensions, which improves the welfare of almost
everyone in the community. That is a utilitarian argument.
Or it might argue that, whatever effect minority preference
will have on average welfare, it will make the community
more equal and therefore more just. That is an ideal, not a
229
utilitarian, argument.
Turning his attention to utilitarian arguments, he admits
that they "encounter a special difficulty that ideal arguments do
not."23 ° Utilitarian arguments confront us with the problem of
how gains and losses in the overall collective welfare can be
measured. He introduces what he calls "preference
utilitarianism" whereby the policymakers assign equal weight to
the preferences of all affected by the policy of preferential
admission. According to this view, a society is better off as a
whole if it gives satisfaction to the aggregate of preferences in
society:
[T]he members of the community will each prefer the
consequences of one decision to the consequences of others.
DeFunis, for example, prefers the consequences of the
standard admissions policy to the policy of minority
229. RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 232 (Harvard Univ. Press
1977).
230. Id.
preference Washington used, while the blacks in some urban

ghetto might each prefer the consequences of the latter policy
to the former. If it can be discovered what each individual
prefers, and how intensely, then it might be shown that a
particular policy would satisfy on balance more preferences,
taking into account their intensity, than alternative policies.
On this concept of welfare, a policy makes the community
better off in a utilitarian sense if it satisfies the collection of
preferences better than alternative policies would, even
231
though it dissatisfies the preferences of some.
Dworkin recognizes that it is difficult to devise a method by
which "it might be shown that a particular policy would satisfy on
balance more preferences than alternative policies," and argues
that voting may be the only effective method to discover the
preferences of people with regard to a particular policy. However,
this method is not available to the courts. Dworkin argues that
only personal preferences should be counted. A preference is
personal if the person who reveals the preference only considers
the consequences of a particular policy for himself. External
preferences, which are motivated by a person's emotive attitudes
to other people rather than by the anticipated consequences of a
policy for himself, are to be discounted, lest the decision-making
process be affected by factors which are extrinsic to it. 23 2 He
believes that, because of the antecedent probability that some
political decisions may be corrupted, the Supreme Court has
created "suspect" categories. Race is one of these categories. This
antecedent probability to which Dworkin refers may be a reason
why the Supreme Court also requires that racial classifications be
subjected to the strict scrutiny test which, as seen previously,
demands the presence of a compelling state interest. In addition,
this test also requires that the racial classification is necessary
for the accomplishment of that interest. Thus, while voting as a
method to discover the personal preferences of people is not
available to the courts, the requirement that racial classifications
231. DwORKIN, supra note 229, at 233.

232. Dworkin recognizes that the distinction between personal and external
preferences is fatally flawed because external preferences often are grafted onto
personal preferences. Id. at 234; cf Robert L. Simon, Individual Rights and Benign
Discrimination, ETHICS, Oct. 1979, at 88, 93 (agreeing that there is a distinction
between external and personal preferences but that Dworkin's analysis should be
limited to his particular application); Julius Stone, Justice in the Slough of Equality,
29 THE HASTINGS L.J. 995, 1013-15 (1978) (arguing that Dworkin's analysis is
limited in its application).
be strictly scrutinized ensures the presence of a compelling

interest which promotes the overall collective welfare: an interest
which does not increase the overall collective welfare could hardly
be called a "compelling" interest. The strict scrutiny test is the
test, which is used by most courts, when called upon to assess
claims that the Equal Protection Clause is violated by the
operation of preferential admissions programs.
I do not intend to analyze all, or even most, forward-looking
arguments of the sort, which may be construed as preference
utilitarianism. Instead, I propose to concentrate in this article on
two arguments offered by the courts in DeFunis and Bakke for the
introduction of a policy of preferential admissions of minority
candidates; namely the provision of more minority professionals,
and the university's interest in selecting a "diverse" student body.
The choice of these two arguments is not arbitrary because they
illustrate well the conflict between the two versions of merit
discussed in this article. Also, these issues are instrumental in
explaining the argument that an assessment of these versions of
merit is determined ultimately by reference to the proper function
of universities, which is the imaginative impartation and
acquisition of knowledge. I argue in this Part that, while
"diversity" is a compelling interest in the sense that it enables a
professional school to better perform its proper function, an
application of the second part of the strict scrutiny test shows
that preferential admissions programs, which involve the
admission of candidates simply on the basis of race, viewed as a
group characteristic, are not necessary to achieve genuine
diversity in the student body.
2. DEFUNIS: APPLICATION OF THE STRICT SCRUTINY TEST TO

LAW SCHOOL PREFERENTIAL ADMISSIONS PROGRAMS
2.1. PROVISION OF MORE MINORITY LAWYERS

The Supreme Court of Washington in DeFunis sustains the
argument that the state has a compelling interest in the provision
of more minority lawyers for the benefit of minority communities:
[Tihe shortage of minority attorneys - and, consequently,
minority prosecutors, judges, and public officials -
constitutes an undeniably compelling state interest. If
minorities are to live within the rule of law, they must enjoy
equal representation within our legal system. 233

As an increase in the number of Black lawyers can be achieved
only by increasing the enrollment of Black students, the
University developed its preferential admissions program
discussed in detail in Part III of this article.
It is a fact that in the United States, some minority groups,
in particular Blacks and Spanish-speaking Americans, are under-
represented in professional schools in proportion to their total
numbers in society.2 34 As explained before, through the
application of the strict scrutiny test, a racial classification is
scrutinized closely in the light of its asserted purposes. It can be
argued that the demonstrable under-representation of some
minority groups, including Blacks and Spanish-speaking
Americans, is a sufficient reason for regarding an increase in
minority professionals as a compelling state interest.2 3 5 While it
is unlikely to produce agreement on what constitutes a "sufficient
reason," the proposition that the statistical shortfall of minority
professionals constitutes a compelling interest is not arbitrary.
Indeed, it may well be demonstrated that, using Dworkin's words,
an increase in minority professionals improves "the average or
collective level of welfare in the community" and makes society
better off. However, the second part of the test requires that the
racial classification involved (namely the selection of minority
students simply because of their race or ethnic background) in
reality results in an increase in the number of minority students,
thereby achieving the state's compelling interest. If the
preferential admissions program does not result in the

234. O'Neil, Racial Preference, supra note 203, at 943-44. For data on minority law
school enrollments and trends, see Ernest Gelhorn, The Law Schools and the Negro,
1968 DuKE L.J. 1069, 1073 (1968) (demonstrating that the percentage of African
American attorneys comprise less than one percent of the legal profession); Robert M.
O'Neil, PreferentialAdmissions: EqualizingAccess to Legal Education, 1970 U. TOL.
L. REV. 281, 295-305 (1970) (exploring the effects of preferential treatment programs
for minority students). Some minority groups may be over-represented. Some people
have the impression that, for example, Jews are over-represented in universities. It
is not clear how decisive statistical support for this proposition can be gathered (as
Harvard University tried to do in the twenties) because of the difficulty in
establishing precise criteria by which minorities can be defined. However, it is not
essential for my argument to investigate whether the impression that some groups
are over-represented is valid or not.
235. Of course, statistical under-representation does not entail, of necessity, past
societal discrimination, even though some would argue to the contrary.
enrollment and graduation of more minority students, then the

racial/ethnic classification would have infringed DeFunis's
constitutional right to equal protection under the Fourteenth
Amendment.
The effectiveness of a preferential admissions program to
increase minority enrollment in professional schools has been
criticized by a number of writers on the ground that there can be
no adequate numerical increase because it only pushes minority
students from lesser to better law schools. 23 6 This phenomenon,
which is known in the relevant literature as the "moving-up
phenomenon" is made, among others, by Professor Clyde
Summers:
The operational effect within the total admissions structure
of giving preference to minority students should now be clear.
If Harvard or Yale, for example, admit minority students
with test scores 100 to 150 points below that normally
required for a nonminority student to get admitted, the total
number of minority students able to obtain a legal education
is not increased thereby. The minority students given such
preference would meet the normal admissions standards at
Illinois, Rutgers or Texas. Similarly, minority students given
preference at Pennsylvania would meet normal standards at
Pittsburgh; those given preference at Duke would meet
normal standards at North Carolina, and those given
preference at Vanderbilt would meet normal standards at
Kentucky, Mississippi and West Virginia. Thus, each law
school, by its preferential admission, simply takes minority
students away from other schools whose admission standards
are further down the scale. Any net gain in the total number
of minority students admitted must come, if it comes at all,
because those schools whose admission standards are at the
bottom of the scale take students whom they would not
236. Marshall Redish, Preferential Law School Admissions and the Equal
Protection Clause: An Analysis of the Competing Arguments, 22 UCLA L. REV., 343,
393-94 (1974) (discussing Professor Summers' argument that preferential admissions
programs do not necessarily result in an increase in the total number of minority
lawyers); Sowell, supra note 129, at 41 (arguing "each level (of academic institution)
ends up with minority students underqualified for that level"); Clyde W. Summers,
Preferential Admissions: An Unreal Solution to a Real Problem, 1970 U. TOL. L.
REV., 377, 384-86 (1970) (arguing that lowering admissions standards does not
increase the total number of minority students obtaining a legal education because
each school, by lowering its requirements, is taking students away from another
school with lower admission standards).
otherwise take. Because these schools have relatively open

admissions for all who meet minimum standards, this would
require their lowering those standards for minority students.
In sum, the policy of preferential admission has a pervasive
shifting effect, causing large numbers of minority students to
attend law schools whose normal admission standards they
do not meet, instead of attending other law schools whose
237
normal standards they do meet.
According to this argument, under a preferential admissions
program, members of minority groups are admitted to
professional schools, the admission requirements of which they do
not meet. However, those students admitted to a professional
school, through a preferential admissions program, probably
would meet the admission requirements of a school with lower
admission standards. Therefore, the only numerical gain which
feasibly can be expected is from the class of minority students
who do not meet even the requirements of the schools with the
lowest admission standards, but who, nevertheless, are admitted
to such schools through a preferential admissions program.2 3
Hence, as the numerical increase in the enrollment of minority
students is limited to law schools with the lowest admission
requirements, a numerical increase of minority students in these
schools can be achieved only if applicants are admitted simply on
the basis of their race, taken as a group characteristic rather than
on the basis of established admission standards. However, under
the strict scrutiny test, it becomes crucial that a preferential
admissions program "does more than simply push minority
students from lesser to better law schools,"2 3 9 the test demands
237. Summers, supra note 236, at 384.

238. This argument has, however, another side to it: as DeFunis was a qualified
applicant, it could be argued that he would have gained admission to some law
school. In fact, DeFunis was accepted for admission to four other law schools
DeFunis, 507 P.2d at 1181. This fact was extremely important because he could not
claim that he was denied a legal education altogether. All that DeFunis could claim
was that he was denied the most desirable legal education in the circumstances of his
case. Certainly, better education for more minority members equaled a
proportionate decrease in the quality of the legal education of DeFunis; therefore, the
fact that he had offers of admission elsewhere did not dispose of the vexing questions
raised by the preferential admission program concerned. See John Hart, The
Constitutionalityof Reverse Racial Discrimination,41 U. CHI. L. REV. 723, 725 n.12
(1974) (arguing that DeFunis' enrollment in any of the other four schools would have
displaced someone there, merely shifting the exclusion from DeFunis to someone
else).
239. Redish, supranote 194, at 394.
that the racial classification accomplish the state's interest

namely, an adequate increase in minority enrollment. An
increase, which is achieved by the enrollment of students who do
not meet the requirements of schools with the lowest admission
criteria, does not qualify as "adequate." What constitutes an
adequate increase cannot be identified merely in numerical
terms. An adequate increase in the number of students
presupposes that they are qualified for admission to some law
school. In other words, an adequate increase is achieved only if
the students selected are able to contribute to or to profit from
their involvement with a university's function; unqualified
applicants are not expected to do this. The admission of
applicants, who are not qualified for admission to any law school
on the basis of individual characteristics but who, nevertheless,
are admitted simply on the basis of their race, inflate the size of
and alter the character of the student body. However, if an
increase in the number of minority students, coupled with a
change in the profile of the student body, were unrelated to the
performance by the university of its function, then this increase
would not result in improved educational experiences aimed at
facilitating the graduation of competent minority professionals.
Nevertheless, as seen before, the preferential admissions
program involved in DeFunis resulted in the admission of some
Black students simply on the basis of their race. The Supreme
Court of Washington was adamant that the only way the number
of minority students could be increased was by initiating
preferential admissions programs because "racial imbalance in
the law school and the legal profession" was "the evil to be
corrected, and it can only be corrected by providing legal
education to those minority groups which have been previously
deprived."24 ° However, the court failed to examine whether it was
necessary to admit students on the basis of their race in order to
increase minority enrollment in professional schools. If there
were viable alternative methods to preferential admissions
programs, then these programs would cease to be necessary for
the accomplishment of that interest. In particular, the Supreme
Court of Washington failed to examine whether a long-term
solution, as opposed to an immediate solution, was a viable
alternative. For example, the court failed to examine whether
reform of school finances, aimed at equalizing the spending power
240. DeFunis, 507 P.2d at 1184.

of all school districts, might be a long-term alternative to

preferential admissions programs. Equalization of spending
power may be accomplished by financing education on a
statewide rather than a local basis. Such equalization would
result in a redistribution of wealth in the sense that a part of the
taxes levied in a school district with a high tax base would be
used to finance education in a school district with a low tax base.
It might be expected that this equalization would promote racial
desegregation because parents would realize that part of their
taxes would be used to finance education in poorer school
districts. The court, however, rejected desegregation of
elementary and secondary schools, through a system of statewide
financing, because it did not provide an immediate solution:
It has been suggested that the minority admissions policy is
not necessary, since the same objective could be accomplished
by improving the elementary and secondary education of
minority students to a point where they could secure equal
representation in law schools through direct competition with
nonminority applicants on the basis of the same academic
criteria. This would be highly desirable, but 18 years have
passed since the decision in Brown v. Board of Education ...
and minority groups are still grossly under-represented in
law schools. If the law school is forbidden from taking
affirmative action, this under-representation may be
perpetuated indefinitely. No less restrictive means would
serve the governmental interest here; we believe the minority
admissions policy of the law school to be the only feasible
"plan that promises realistically to work, and promises
241
realistically to work now."
The alternative proposed above, admittedly, would not
produce immediate change but this still does not explain the
failure to search for an alternative solution which might result in
the enrollment of more minority students in professional schools
and in less disadvantageous consequences for individuals such as
DeFunis. The Supreme Court of Washington, in failing to search
for alternative solutions, overlooked the question of whether
equalization of educational opportunities, through reform of
school finances, would be more effective than the use of
preferential admissions programs in the short run. Thus, even
though the court pretended to subject the preferential admissions
241. DeFunis, 507 P.2d at 1184 (citations omitted).

program in DeFunis to strict scrutiny, it applied minimum

scrutiny in practice.
Another argument, which casts doubts on the expectation
that more minority lawyers would be graduated by a preferential
admissions program, concentrates on the fact that a
disproportionate number of minority students, who are admitted
preferentially, do fail.2 42 This argument, which is related closely
to Summers's argument that preferential admissions programs
only push "minority students from lesser to better law schools"
focuses on the fact that minority students are mismatched with
the universities by which they are selected. Professor Thomas
Sowell writes:
The Ivy League schools and the leading state and private
institutions have the scholarship money and the brandname
visibility to draw in enough minority youngsters to look good
statistically. The extremely high admissions standards of
these institutions usually cannot be met by the minority
students - just as most students in general cannot meet
them. But in order to have a certain minority body count, the
schools bend (or disregard) their usual standards. The net
result is that thousands of minority students who would
normally qualify for good, non-prestigious colleges where
they could succeed, are instead enrolled in famous
institutions where they fail. For example, at Cornell during
the guns-on-campus crisis, fully half of the black students
were on academic probation, despite easier grading
standards for them in many courses. Yet these students
were by no means unqualified. Their average test scores put
them in the top quarter of all American college students - but
the other Cornell students ranked in the top 1 per cent. In
other words, minority students with every prospect of success
in a normal college environment were artificially turned into
failures by being mismatched with an institution with
standards too severe for them ....
When the top institutions reach further down to get
minority students, then academic institutions at the next
level are forced to reach still further down, so that they too
will end up with a minority body count high enough to
242. Lino A. Graglia, Special Admission of the "CulturallyDeprived" to Law School,

119 U. PA. L. REV., 351, 359 (1970).
escape criticism and avoid trouble with the government

and other donors. Each academic level, therefore, ends up
with minority students underqualified for that level. The
end result is a systematic mismatching of minority
students and the institutions they attend, even though the
wide range of American colleges and universities is easily
capable of accommodating those same students under
their normal standards.248
Many universities, while applying a less stringent set of
admission standards, would ultimately require the same
performance standards from its minority students, as from the
majority students.244 In such circumstances, according to Sowell's
argument, there is no reasonable expectation that more minority
students would successfully complete the course of study; it may
be anticipated that many students, who are preferentially
admitted, may fail, or being frustrated, drop out because the
performance standards remain the same.245 In other words, the
number of minority graduates would be disproportionately
smaller than the number of minority students, who are admitted
preferentially, assuming that graduation standards are held
constant and uniform. Thus, if we are to ensure that the ratio of
minority members to majority members remains the same at
graduation as it is at commencement, then a double standard for
performance should be established also. This actually has
happened in some universities. Sowell refers to the fact that at
Cornell half of the Black students were on probation "despite
easier grading standards for them in many courses." 246 This is an
admission that students who are mismatched with their
universities have not been able to contribute to or profit from the
imaginative impartation of knowledge in some institutions; even
though they may profit from an education in institutions, the
performance standards of which correspond with the level of
aptitude of these students.
243. Sowell, supra note 129, at 41 (emphasis added).

244. Arval A. Morris, Equal Protection, Affirmative Action and Racial Preferences
in Law Admissions, 49 WASH. L. REV. 1, 3 (1973) (noting that whether or not the
admissions standards differ, the exit standards remain the same).
246. Id.
2.2. DIVERSITY AS A COMPELLING INTEREST

The Supreme Court of Washington also found a compelling
state interest "in providing all students with a legal education
that will adequately prepare them to deal with the societal
problems which will confront them upon graduation.2 47 The 248
court referred, for support, to the case of Sweatt v. Painter
where the Court had found the diverse student body concept a
sufficiently persuasive basis for striking down a plan for
segregated legal education:
[A]lthough the law is a highly learned profession, we are well
aware that it is an intensely practical one. The law school,
the proving ground for legal learning and practice, cannot be
effective in isolation from the individuals and institutions
with which the law interacts. Few students and no one who
has practiced law would choose to study in an academic
vacuum, removed from the interplay of ideas and the
exchange of views with which the law is concerned.2 4 9
The selection of a diverse student body representing all segments
of society was, therefore, considered as a compelling state
interest.
The legal profession plays a critical role in the policy making
sector of our society, whether decisions be public or private,
state or local. That lawyers, in making and influencing these
decisions, should be cognizant of the views, needs and
demands of all segments of society is a principle beyond
dispute. The educational interest of the state in producing a
racially balanced student body at the law school is
250
compelling.
The selection of a diverse student body is in the United
States, "a constitutionally permissible goal for an institution of
higher education."251 This goal flows from the general right of an
institution of higher education to select its own student body. It

248. Sweatt v. Painter, 339 U.S. 629 (1950).
249. Id. at 634; cf. Theodore St. Antoine, Bakke: A Compelling Need to
Discriminate, 4 LEARNING & THE LAW 14, 16-17 (1977) (pointing out that students
preparing to practice law have a vital need for insight that can only be provided by
interaction with minority students).
250. DeFunis, 507 P.2d at 1182.
is important, however, to point out that the right to select a

diverse student body facilitates the performance by the university
of its mission, which using Justice Frankfurter's words, is the
provision of an 'atmosphere which is most conducive to
speculation, experiment and creation.' 25 2 This clear judicial
statement on the function of a university differs from its
formulation in Part VI of this article only in the words used. In
Part VI, it is argued that the imaginative impartation and
acquisition of knowledge is the proper function of universities.
Despite the difference in formulation, both statements are clearly
similar in substance. Indeed, the existence of an atmosphere of
speculation, experiment, and creation prevails only if knowledge
is considered imparted or acquired in an imaginative way.
However true it may be that a diverse student body
contributes to the promotion of an atmosphere of speculation,
experiment, and creation, it does not follow that the selection of
some minority members simply on the basis of their race or
ethnic background contributes to the accomplishment of this
atmosphere. Even assuming that the achievement of a diverse
student body is a compelling state interest, the strict scrutiny test
still requires that the admission of students simply on the basis of
their race or ethnic background is necessary to the attainment of
that interest. In particular, this necessity requirement involves
an examination of possible alternatives, which are capable of
achieving a diverse student body without recourse to race-
conscious methods, such as preferential admissions programs.
An examination of whether these programs, which involve the
selection of students simply on the basis of race, satisfies this
necessity requirement is important because otherwise the diverse
student body concept might be interpreted as enabling a
university to make arbitrary selection decisions.
The right to select a diverse student body is an essential part
of academic freedom, which is protected by the freedom of
expression clause of the First Amendment. Nevertheless,
limitations on this right are necessary to avoid a possible conflict
between the First and Fourteenth Amendments to the United
States Constitution. While the First Amendment guarantees the
right to academic freedom, which involves the right to decide on
252. Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J.,
concurring) (quoting a statement from T.H. Huxley at the Annual Report of
Presidents).
the composition of the student body, the Fourteenth Amendment

prohibits racial discrimination. If a university's First
Amendment freedom were interpreted as permitting the selection
or rejection of students simply on the basis of their race, then
there is the distinct possibility of a conflict between both
Amendments. Such a conflict would arise if the university used
its right to select students only from a specific racial/ethnic group
while excluding all others who belong to other racial/ethnic
groups. Thus, the question whether the preferential admission of
minority students simply on the basis of one's race really
contributes to the attainment of a diverse student body, requires
examination.
The contribution of students who are selected on the basis of
race can be measured in respect to the proper function of
universities, which is the provision of an atmosphere of
speculation, experiment and creation. Such atmosphere which is
made available, at least in part, by the selection of a diverse
student body is expected to benefit -all students educationally.
Indeed, reliance on the concept of diversity, as a justification for
preferential admissions programs presupposes a link between
"diversity" and "educational benefit."253 If it is proved that
selection simply on the basis of race does not result, in reality, in
educational benefits to either the majority or to the minority,
then such selection does not contribute to genuine diversity. At
least one commentator has argued that such selection does not
contribute to the attainment of a genuine, diverse student body.
Professor Lino A. Graglia is of the view that the contribution of
students selected preferentially may be impaired considerably
because they may not feel like authentic law students, perhaps
being afraid to contribute to and benefit from the learning
process.254 The evidence that he provides is conjectural. Like
many comparable observations, he relies mainly on "common
sense" and "experience" as a teacher in a law school. The very
sensitivity of the issue involved has made the deliberate and
systematic accumulation of ordinary sociological statistics
253. Sidney Hook, Bakke - Where Does It Lead?, FREEDOM AT ISSUE, Sept.-Oct.
1978, at 3, 5-6; Vincent Blasi, Bakke as Precedent: Does Mr. Justice Powell Have a
Theory?, 67 CAL. L. REV. 21, 37 (1979) (arguing that "knowledge and aptitude" are
qualities that must exist in students in order for "educational diversity" to be
achieved, and that race-based quota systems ignore the presence or absence of these
qualities).
254. Graglia, supra note 242, at 356-57.
understandably difficult. Nonetheless, if Graglia is correct, then

it becomes necessary to examine whether genuine diversity is
attained by the mere presence of minority students or whether an
active contribution is required in order to maximize "the interplay
of ideas and exchange of views." If he is correct, then this casts a
serious doubt on the effectiveness of racial classifications
contributing to a diverse basis for learning.
The argument that the selection of students simply on the
basis of race is conducive to an atmosphere of speculation,
experiment, and creation may have further unexpected
implications: it also suggests that the exclusion of majority
applicants such as DeFunis may be in the best interests of those
majority applicants who are ultimately admitted. The rationale
for such selection is that it adequately prepares students to deal
with the social problems they may confront upon graduation.
Thus, the argument may imply that minority students, of
necessity, should be members of a law class so that the majority
(White students) are confronted with the kind of social problems
which they are likely to encounter after graduation. This
assumes, of course, that they may work with minority members;
this is not guaranteed. However, if it is to the advantage of
Whites to accept less qualified Blacks, in order to select a diverse
student body, it could be expected that admission of a less
qualified White student also might contribute to a better learning
environment. Also, the argument can be used to advocate the
inclusion, in the student body, of rehabilitated criminals. The
inclusion of rehabilitated criminals may seem to be particularly
compelling in the light of the fact that many lawyers prepare
themselves for a career in criminal law. One could equally argue
for the inclusion of stupid people or identical twins on the ground
that they, too, contribute to a diverse student body. Nevertheless,
while the inclusion of, for example, criminals and stupid people
may indeed contribute to a more diversified student body, it
would hardly be suggested that it is the kind of diversity which
facilitates the performance by the university of its proper function
which, in Whitehead's words, is the "imaginative consideration"
of learning. 55 The very absurdity of this hypothesis brings out
the fact that the mode of selection of students must ultimately be
subordinated to some conception of the proper function of
universities. The importance of the selection of students, who are
255. WHITEHEAD, supra note 180, at 139.

able to contribute to and profit from their involvement with a

university's function, has a prominent place in Justice Powell's
opinion in Bakke. It is for this reason that I turn to an analysis of
this opinion in the next section.
3. BAKKE: APPLICATION OF THE STRICT SCRUTINY TEST TO
MEDICAL SCHOOL PREFERENTIAL ADMISSIONS PROGRAMS
3.1. PROVISION OF MORE MINORITY DOCTORS
Justice Powell concedes that "in some situations a State's

interest in facilitating the health care of its citizens is sufficiently
compelling to support the use of a suspect classification."256
However, he also argues that the University cannot prove that
the classification is geared to promote that goal, and that it can
have any significant effect on the problem. The rationale that
more minority professionals are needed assumes as well that
minority graduates may work with people from their group, upon
graduation. It may be true that Black professionals best
understand the problems and difficulties of the Black community,
but it does not follow that minority graduates have an identical
set of values arising from identical life experiences or that they
could best work with and best serve those of the same race or
ethnic origin. If Professor Thomas Sowell's argument, that
minority graduates are likely to come from the top of the minority
distribution, carries weight,25 7 then it may be expected that they
will not wish to work with members of their own racial group.
Preferential admissions programs might be justified by
attempting to prove that an increase in minority candidates in
professional schools is likely, by way of example, to improve the
self-image of other members of the group. This justification for
preferential admissions programs, which is known in the
literature as the "role model" argument, is expressed by Professor
Kent Greenawalt as follows:
Past discrimination has made it very hard for blacks to
become professionals. The widespread assumption that
blacks are more suited for menial jobs has affected the
attitudes of whites toward blacks and the attitude of blacks
toward themselves. If young blacks are to aspire to and work
toward, high vocational positions, it is important for them to
256. Bakke, 438 U.S. at 310.

see that significant numbers of persons with whom they

identify are in those positions. And the perception of blacks
in those positions will do much to vitiate possible feelings of
racial inferiority among a much wider group of blacks. If
whites are going to accept blacks as equal, not only as a
matter of religious or political philosophy but also on the
intuitive level that so influences actual social relations, it is
important that they deal with blacks as equals in the
performance of social responsibilities .... Both blacks and
whites need to see blacks in positions of community
leadership, as well as to have a black perspective brought
directly to bear on the resolution of many community
problems. Increasing the number of blacks in high vocational
positions and as community leaders will not only raise the
aspiration of young blacks and dissipate white racial
stereotypes, but may also ameliorate some stereotypes blacks
have about whites. No longer will it be so easy to distinguish
"them" (the white power structure) from "us" (the black
oppressed), because "them" will include many blacks. Other
blacks will come more easily to see the constraints under
which those with power operate and will abandon any
oversimplified notion that those in responsible positions are
258
invariably "oppressors."
The role model argument suggests the selection of the least
harmed minority students because they are, arguably, best able
to "raise the aspirations of young blacks" in the sense that they
prove the ability of members of their race to achieve admission to
universities. Of course, the possible side effects of a degree of
consequential stigmatization need consideration. Indeed,
preferential admissions programs may, in reality, stigmatize
minority students because, among other reasons, prospective
employers may suspect them of reduced competence. Also, the
preferential admission of some minority students may lead to the
assumption that those who unsuccessfully applied for admission
are lazy or have utterly different aspirations. But even then,
proponents of preferential admissions programs believe that the
advantage of role models in universities lies in the ability of
259
minority students to break down stereotypes about them.
258. Kent Greenawalt, Judicial Scrutiny of "Benign" Racial Preference in Law

School Admissions, 75 COLUM. L. REV. 559, 592 (1975).
259. GOLDMAN, supra note 129, at 142; James W. Nickel, Preferential Policies in
Hiring and Admissions: A JurisprudentialApproach, 75 COLUM. L. REV. 534, 541
Nonetheless, the selection of the least harmed minority students

may promote ignorance among the majority students about the
stereotyped minority, rather than make a positive contribution to
the destruction of fallacious stereotypes. Indeed, the selection of
the least harmed minority students may result in the formation
of the wrong stereotype because they may not have suffered any
minority problems. This stems from the fact that these students
come from that section of the minority that has largely avoided
these problems. Minority students may differ from the majority
of the members of their race: if they are the least harmed
members of their group, then it may be expected that their race is
contra-typically associated with other characteristics such as
income, living standards, and prior opportunities. Thus, I
suggest that the least harmed minority students, who are
admitted preferentially, may be an elite group of the minority and
may differ from the majority of the members of their race in
terms of income, status, and place of origin. Hence, their
admission may result not only in the formation of wrong
stereotypes, as already suggested, but may even have the adverse
effect of encouraging majority students to ignore or minimize the
specific problems of minority groups. Also, it is worth speculating
whether the admission of the least harmed minority students
alienates them from others of their race and exacerbates intra-
racial divisions of a sort many Black leaders would regard as
inconsistent with the dignity and aspirations of Black people.
3.2. DIVERSITY AS A COMPELLING INTEREST

After rejecting several interests, Justice Powell identifies
"diversity" as a compelling state interest. 260 He argues that the
attainment of diversity in the student body improves the
educational experience of the students because it results in
educational benefits for the student body. 261' The compelling state
interest of diversity is identified by reference to the freedom of
expression clause of the First Amendment to the United States
Constitution:
The fourth goal asserted by petitioner is the attainment of a
diverse student body. This clearly is a constitutionally
(1975) (discussing the application of the role model theory and the potential to
dissipate racial prejudice and motivate young members of minority groups to achieve
positions traditionally held by white males).
260. Bakke, 438 U.S. at 311-13.
261. Id. at 314.
permissible goal for an institution of higher education.

Academic freedom, though not a specifically enumerated
constitutional right, long has been viewed as a special
concern of the First Amendment. The freedom of a university
to make its own judgments as to education includes the
selection of its student body.
The atmosphere of "speculation, experiment and creation" -

so essential to the quality of higher education - is widely
believed to be promoted by a diverse student body. As the
Court noted in Keyishian, it is not too much to say that the
"nation's future depends upon leaders trained through wide
exposure" to the ideas and mores of students as diverse as
this Nation of many peoples.
Thus, in arguing that its universities must be accorded the
right to select those students who will contribute the most to
the "robust exchange of ideas," petitioner invokes a
countervailing constitutional interest, that of the First
Amendment. In this light, petitioner must be viewed as
seeking to achieve a goal that is of paramount importance in
the fulfillment of its mission.
Physicians serve a heterogeneous population. An otherwise

qualified medical student with a particular background -
whether it be ethnic, geographic, culturally advantaged or
disadvantaged - may bring to a professional school of
medicine experiences, outlooks, and ideas that enrich the
training of its student body and better equip its graduates262to
render with understanding their vital service to humanity.
Nevertheless, Justice Powell argues that despite a
university's "wide discretion" to make "the sensitive judgments as
to who should be admitted,"26 3 constitutional limitations
protecting individual rights may not be disregarded in the
selection process. In particular, his Honor is concerned that an
individual's right to be free from racial discrimination would be
violated by the unrestricted use of the right of a university to
262. Bakke, 438 U.S. at 311-14 (emphasis added).

263. Id. at 314.
select its own student body.26 4 As seen before, if a university

would have unlimited power to select its student body (which is
protected by the First Amendment),26 5 then some racial groups
might be excluded from enrollment under the spurious cover of
"diversity"; this exclusion represents a violation of the Equal
Protection Clause of the Fourteenth Amendment. Thus, he fears
a conflict may arise between the First and Fourteenth
Amendments if the university's prerogative to select its own
student body were not subject to limitations.2 6 6 Hence, Justice
Powell applies the strict scrutiny test because this test compels
us to examine whether selection to professional schools on the
basis of race contributes to "genuine" diversity, which using
Justice Powell's language, is of "paramount importance in the
fulfillment of its mission."26 7 The application of the strict scrutiny
test ensures that the university's interest in diversity, as
protected by the First Amendment, be preserved without
violating the Fourteenth Amendment. If it is possible to prove
that selection simply on the basis of one's race does not promote
genuine diversity, then one could say that the classification
impermissibly infringes the constitutional right of Bakke to be
free from racial discrimination.
Justice Powell argues that selection, simply on the basis of
race or ethnic background, does not promote genuine diversity.
He says that a preferential admissions program is not the only
effective means of achieving the interest of diversity:
It may be assumed that the reservation of a specified number
of seats in each class for individuals from the preferred
ethnic groups would contribute to the attainment of
considerable ethnic diversity in the student body. But
petitioner's argument that this is the only effective means of
serving the interest of diversity is seriously flawed. In a most
fundamental sense the argument misconceives the nature of
the state interest that would justify consideration of race or
ethnic background. It is not an interest in simple ethnic
diversity, in which a specified percentage of the student body
is in effect guaranteed to be members of selected ethnic
264. Bakke, 438 U.S. at 315-18.

265. Id. at 312 (noting that academic freedom has long received First Amendment
Protection).
266. Id. at 317-18.
267. Id. at 313.
groups, with the remaining percentage an undifferentiated

aggregation of students. The diversity that furthers a
compelling state interest encompasses a far broader array of
qualifications and characteristics of which racial or ethnic
origin is but a single though important element.268
Justice Powell argues, in effect, that the university's preferential
admissions program which gives determinative weight to
racial/ethnic diversity, might hinder, rather than further, the
attainment of genuine diversity and hamper the university in the
fulfillment of its mission.
His Honor did not attempt to define genuine diversity.
Rather, he referred to the "illuminating" example found in the
Harvard College (a liberal arts college) program where the
concept of diversity is expanded to include students from
disadvantaged economic and ethnic groups. 269 In the Harvard
College Admission Program, race is considered a factor in the
admission decision which may tip the balance in a student's favor
"just as geographic origin or a life spent on a farm may tip the
balance in other candidates' cases. '270 Thus, while race or ethnic
background may be deemed a 'plus,' in a particular applicant's
file ... it does not insulate the individual from comparison with
all other candidates for the available seats. 2 7 '
Justice Powell realizes that a preferential admissions
program, which considers race as only one factor, may simply be a
subtle and more sophisticated means of according racial
preference than a program which gives determinative weight to
one's race. However, he points out that "a court would not
assume that a university, professing to employ a facially
nondiscriminatory admissions policy, would operate it as a cover
for the functional equivalent of a quota system" and that "good
faith would be presumed in the absence of a showing to the
contrary."27 2 Nevertheless, as the line to be drawn between
constitutional and unconstitutional preferential admissions
programs is dependent on good faith, the very real possibility
exists that unconstitutional programs continue to exist provided
268. Bakke, 438 U.S. at 315.

269. Id. at 316-17.
270. Id. at 316.
271. Id.
272. Id. at 318-19.
that they are more subtle than the Davis program. Various
writers have described this view as an invitation to universities
to continue their preferential admissions programs.2 7 3
Justice Powell's use of the Harvard College diversity model
has been criticized sharply by some writers.2 7 4 In the main, these
writers argue that the use of an admissions program of a liberal
arts college as a model for a professional school is inappropriate.
While the need for diversity is obvious in undergraduate study,
one may be able to advance a good argument that diversity is not
a desirable goal in a professional school. Such argument may be
based on the belief that the responsibilities of professional people
require admission only of graduates who possess individual
characteristics (including race), which are necessary for or likely
to contribute to "an atmosphere of speculation, experiment and
creation." For example, Professor Dershowitz of Harvard Law
School argues that, "Justice Powell erred seriously in selecting
the Harvard College admission system" as a model for a
professional medical school.27 He makes essentially two points.
First, he argues that there are "enormous and crucially relevant
differences between the admissions policies of elite professional
schools and those of elite undergraduate colleges."2 7 6 While
undergraduate colleges purport to seek diversity in terms of
geographical background, talents, experience, and subject matter
interest in its prospective students, Harvard Law School "has
prided itself over the years - and has been praised - for its almost
single-minded commitment to a meritocratic admissions
policy." 277 Second, Dershowitz refers to the unsavory origins of
the diversity model of admission used by Harvard University in
the twenties.27 This model was aimed at excluding Jewish
273. William J. Bennett & Terry Eastland, Why Bakke Won't End Reverse
Discrimination:1, COMMENTARY, Sept. 1978, at 29, 32. Professor Sidney Hook even
expressed the opinion that, despite the relief granted to Bakke, the Court nullified
effectively the key provision of the 1964 Civil Rights Act. Hook, supra note 253, at 3.
274. See, e.g., Alan M. Dershowitz & Laura Hanft, Affirmative Action and the
Harvard College - Discretion Model: Paradigm or Pretext? 1 CARDOzO L. REV. 379
(1979); Robert M. O'Neil, Bakke in Balance:Some PreliminaryThoughts, 67 CAL. L.
REV. 143, 162-65 (1979) (asserting that the Harvard College policy is suited only to
the admissions selection process of that school and others like it, and that the Bakke
decision did not provide direction for schools differently situated from Harvard).
275. Dershowitz, supra note 274, at 383.
276. Id. at 384, n.15.
277. Id.
278. Id. at 385-99.
students from the University. Dershowitz makes the point that a

discretionary admissions process now legitimated by Justice
Powell achieved the rejection of Jewish students.2 9 He claims
that Justice Powell's opinion "legitimated an admissions process
that is inherently capable of gross abuse and that ... has in fact
been deliberately manipulated for the specific purpose of
perpetuating religious and ethnic discrimination in college
admissions."28 0
According to Dershowitz, Justice Powell should not have
chosen a system which is capable of abuse, namely a system
which could be used as a more sophisticated means of either
increasing or decreasing the number of minority members in
professional schools:
Powell's opinion ... simply delegates to universities the
discretionary power to decide on the degree and definition of
the diversity - including or excluding racial factors - that
they feel enhance the educational experience of their
students. Presumably, it would allow a university, at its
discretion, to employ a purely "meritocratic" admissions
process, even if that were to produce an entering class with
little or no ethnic or geographic diversity. Taken to its
frighteningly logical extreme, it could even allow a university
to weigh an applicant's race or religion negatively - as
Harvard did under President Lowell - in order to enhance
diversity in the face of an overabundance of applicants from a
particular racial or religious group.
This focus on diversity and academic freedom not only
evades the real issues generated by current affirmative
action programs, but it has created a precedent that in the
end may be far more dangerous and less justifiable than
might have been created by an opinion that confronted the
real issues. The raison d'6tre for race-specific affirmative
action programs has simply never been diversity for the sake
of education. The checkered history of "diversity"
demonstrates that it was designed largely as a cover to
achieve other legally, morally, and politically controversial
goals. In recent years it has been invoked - especially by
professional schools - as a clever ex post facto justification for

280. Id. at 385.
increasing the number of minority group students in the

student body.2 8 '
But, while admitting that a racial consideration might be
used in reality as a more sophisticated means of according racial
preference, Justice Powell assumes that universities operate their
programs in good faith. Justice Powell quoted Justice
Frankfurter's statement in Offutt v. United States. 2 that "justice
must satisfy the appearance of justice ' 28 3 but he fails to mention
that the judge also said that it was only one ingredient amongst
others: it is not enough that an admission program appears to be
fair, it must be fair.2" 4 Thus, although "individualized
consideration" is insisted upon by Justice Powell, the door is left
open to make race the decisive factor in the selection procedure
by assuming that the universities use a racial consideration in
good faith as one factor among others. According to Professor
Lawrence Tribe, Bakke recognizes the constitutional significance
of fair process as such and is yet another example that "the thesis
that procedural fairness reflects the value of assuring fair
treatment as an individual and not simply the value of assuring
correct outcomes. 2 5 At least this makes it understandable why
Powell is read by many people as permitting a wide range of
alternative techniques for achieving results similar to those that
would be achieved by a quota.
For the Brennan Four, there was no real difference between
the approach of setting aside a specified number of places for
minorities or using minority status as a positive factor to be

282. Offutt v. United States, 348 U.S. 11 (1954).
283. Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 319 n.53 (1978) (quoting
Offutt v. United States, 438 U.S. 11, 14 (1954)).
284. Professor Ronald Dworkin points out that Justice Powell's argument is further
weakened because his assumption of good faith contradicts his insistence on using
strict scrutiny. Ronald Dworkin, The Bakke Decision: Did it Decide Anything?, N.Y.
REV. OF BOOKS, Aug. 17, 1978, at 20, 22 [hereinafter Dworkin, The Bakke Decision].
As observed above, the application of the strict scrutiny test is necessary to
determine whether there is any difference between a selection procedure which uses
"race" as a group characteristic or as an individual characteristic. Thus, while
Justice Powell demands strict scrutiny in theory, he abandons strict scrutiny in favor
of a rebuttable presumption of good faith, in practice.
285. Lawrence H. Tribe, Perspectives on Bakke: Equal Protection, Procedural
Fairnessor Structural Justice?, 92 HARV. L. REV. 868, 871 (1979); cf. Joel Seligman,
Special Admissions Are Still Special - Why Little Has Changed Since Bakke,
STUDENT LAW., Dec. 1978, at 24.
considered in evaluating the application of minority applicants.

Justice Brennan observed that Justice Powell placed too much
emphasis on cosmetic differences between quotas, which may
involve selection simply on the basis of race, and other means.2 8 6
The Brennan Four argued that preference was still given, and
that even in the Harvard Program, a determination of the degree
of special consideration is unavoidable. 2 7 Thus, Justice
Blackmun claimed that the difference between the Harvard
Program and the Davis Program was not profound or
constitutionally significant: "[tihe line between the two is a thin
and indistinct one. 28 8
If it was argued that the flexible Harvard Program does not
differ significantly from the quota-based Davis Program (as was
argued by the Brennan Four),28 9 then the power of the University
to select a student body on racial and ethnic grounds becomes
real. In this case, a University has to make a decision on which
groups in society deserve special protection and are to be treated
preferentially. This results in the danger that its decision might
depart from the values of the wider society. It raises the
interesting point that, if a university uses its freedom to select a
diverse student body as a more sophisticated means of admitting
students simply on the basis of their race, the Equal Protection
286. Bakke, 438 U.S. at 324 (Brennan, J., concurring).

287. Id. at 378.
288. Id. at 406. Professor Ronald Dworkin, in an analysis of the Bakke case, sees
important differences between the quota kind of preferential admission program and
the more flexible one, as applied by Harvard University. But he admits immediately
that these differences are "administrative and symbolic." The administrative
advantage of the latter program lies in its flexibility because a university is not
compelled to meet a quota if no qualified applicants are available. The flexible
program is also better, symbolically, because it does not have the structure of
"classical forms of caste and apartheid systems" and because this program
emphasises that "successful minority candidates have been judged overall more
valuable.., than white applicants with whom they directly competed." Dworkin,
The Bakke Decision, supra note 284, at 22. Dworkin argues that there should not be
a constitutional distinction "unless a quota program violates or threatens the
constitutional rights of white applicants as individuals in some way that more
flexible programs do not." Id. He points out that, even if the more flexible program
is used, white applicants might still miss out on some places which are taken by less
qualified members. A majority applicant's overall chances for admission are
decreased no matter how little his or her race counts as a handicap. He concludes
that a handicap under a flexible program and a partial exclusion under a quota
program "are only different means of endorsing the same fundamental
classifications." Id. at 23.
289. Bakke, 438 U.S. at 265.
Clause, which prohibits racial discrimination, is violated.

However, such violation may escape strict scrutiny because, for
constitutional purposes, it would merely constitute a good faith
effort by the university to select a genuine, diverse student body.
Perhaps, this provides the reason why Justice Powell did apply
strict scrutiny to test the constitutionality of the quota-based
Davis selection system. It is equally important to realize that
this may also provide the reason why he would apply medium
scrutiny, in fact, to examine the good faith of a university: strict
scrutiny would affect the right of a university to select a diverse
student body.
3.3. DIVERSITY AND THE PROPER FUNCTION OF A UNIVERSITY
Justice Powell argues that "[t]he freedom of a university to
make its own judgments as to education includes the selection of
its student body."29 ' This freedom, however, is not absolute,
because he recognizes that universities have a First Amendment
right to design their own admission procedures as long as they do
not use formal quotas, which would involve the selection of some
students simply on the basis of race or ethnic background. 29 1 It
might be argued that, if universities were allowed to use "race" or
"ethnic" background as the decisive factor in an admission
process, then such practice might violate the Equal Protection
Clause, which prohibits racial discrimination. In arguing that
"race" may be taken into account as a factor among others,
Justice Powell succeeds in reconciling the dictates of the First
Amendment with his interpretation of the Equal Protection
Clause of the Fourteenth Amendment.
While this reconciliation between the First and Fourteenth
Amendments proves Justice Powell's sensitivity to the existence
of otherwise conflicting constitutional rights, he traces the
possibility of this reconciliation to a quite fundamental reason.
This reason is found in his belief that the right of universities to
select their own diverse student bodies is "a goal that is of
paramount importance in the fulfillment of its mission," which is
described by Justice Powell as "the robust exchange of ideas."292
290. Bakke, 438 U.S. at 312.

291. Id. at 316. See also Nathan Glazer, A Viable Compromise on Minority
Admissions, 1979 WASH. U. L. Q. 93, 102 (1979) (advocating flexibility in admission
requirements with regard to race but discouraging the use of quotas).
292. Bakke, 438 U.S. at 313.
Thus, Justice Powell condones the use of race as a factor in the

selection process because it contributes to the University's
functional performance. This is an interesting approach because
the question of whether "race" may be used in the selection
process is determined ultimately by reference to the function of
universities. This approach is, using Professor Julius Stone's
words, "jurisprudentially attractive" because "it may offer a path
by which equal protection can be functionally molded through
principles appropriate to that segment of national life, embracing
universities and similar institutions, dedicated to the
transmission and expansion of knowledge."2 9 3
The possibility that the University would use its right to
select a diverse student body to promote uniformity rather than
diversity has to be judged in light of its function. Hence,
admission policies "areprotected insofar as they promote this goal
of diversity."2 9' 4 I endorse Professor Stone's comments on this
point:
It may thus be argued... that the Powell diversity ground
establishes that criteria for race-conscious university
admissions will only be entitled to First Amendment
protection if they are actually (or at any rate "rationally")
related to the goal of educational diversity. Though the
criteria may include race, they must also include a sufficient
range of other criteria which genuinely serve to measure the
potential contributions to diversity of all applicants for
2 95
admissions.
Stone also correctly points out that "the diversity
multifactoral approach calls, of course, for constant anxiety and
vigilance against abuse and ddtournement of the wide discretions
involved."2 96
' Hence, a court might be persuaded that a school is
selecting minority applicants simply on the basis of race if, in the
future, a school such as Davis admits the same number of
minority students consistently. Of course, it is assumed that
individual treatment cannot result, except for sheer coincidence,
in the admission of the same number of students as under a
quota, over a long period of time. If selection on the basis of
293. Julius Stone, Equal Protection in Special Admissions Programs:Forwardfrom

Bakke, 6 HASTINGS CONST. L. Q. 719, 746 (1979).
294. Id. at 747.
295. Id. at 748.
296. Id. at 750.
individual characteristics, including race, were to result in the

admission of the same number of students as selection under a
quota, then arguments against the use of quotas would become
weaker. As explained before, the major objection to the selection
of students simply on the basis of their race, taken as a group
characteristic, is that such practice may result in the selection of
students who could not contribute to or profit from their
involvement with the university's function and, consequently,
may exclude some of the very people who could make such
contribution. It is the major advantage of Justice Powell's
selection procedure which takes into consideration a "basket of
factors,"297 including race, taken as an individual characteristic,
that only students are selected who are capable of profiting from
the imaginative consideration, acquisition and impartation of
knowledge. If both selection on the basis of race taken as a group
characteristic and selection on the basis of individual
characteristics were to result in the admission of an equal
number of students, then a quota would be preferable to an
individual approach from an administrative point of view: it is a
much simpler procedure, infinitely cheaper and less time-
consuming.
The effect of Justice Powell's judgment is that universities,
through their admission officers, are authorized to include race as
a factor among the selection criteria in order to achieve a
genuinely diverse student body, which substantially contributes
to the performance of the university's proper function. His
judgment also implies that selection for admission to professional
schools need not be based only on intelligence or aptitude tests or
the like, which are capable of objective measurement. Selection
on the basis of these sorts of tests may fail to establish an
admissions procedure, which allows a university to perform its
functions to the fullest. Indeed, such a system would exclude
those students who possess individual characteristics, including
"race," which are likely to be useful in the imaginative
consideration and acquisition of knowledge. 298 Hence, there is a
need to improve continually the selection procedures by which the
merit of a candidate is tested. Justice Powell, in insisting that
"race" may be a factor in the admissions process because it
297. Stone, supra note 293, at 731.

298. For example, black students may be able to make a first-hand experimental
input into the discussion of important social questions.
contributes to the achievement of genuine diversity and to the

fulfillment by the university of its function, integrates race into
the traditional admission criteria; namely, individual
characteristics, which are necessary for or likely to be useful in
the performance of the proper function of a university. This
integration of race into the selection criteria of universities also
results in the choice, as far as admission to universities is
concerned, of the first conception of merit according to which
"race" is irrelevant unless it is necessary for or useful in the
performance of the relevant specific function in the case of
universities.
VIII. GRUTTER AND THE ACHIEVEMENT OF A

DIVERSE STUDENT BODY
Justice Powell's finding in Bakke that the achievement of a
diverse student body is a compelling state interest, because it
improves the educational experiences of all students, is also at
the heart of Grutter. Chief Circuit Judge Martin, speaking for
the majority in Grutter, specifically referred to Justice Powell's
finding that 'the attainment of a diverse student body.., clearly
is a constitutionally permissible goal of an institution of higher
education"'29 9 and that even 'at the graduate level, our tradition
and experience lend support to the view that the contribution of
diversity is substantial."'3 00 He also considered the district court's
decision in this case. Although the district court acknowledged
that "[t]he evidence submitted by defendants ... demonstrated
that the educational atmosphere at the law school is improved by
the presence of students who represent the greatest possible
variety of backgrounds and viewpoints,"" 1 it decided that the
only compelling state interest is remedying specific instances of
299. Grutter v. Bollinger, 2002 FED. App. 0170P (6th Cir.), 288 F.3d 732 (quoting
Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 311-12 (1978), cert. granted, 123 S.
Ct. 617 (2002).
300. Grutter, 288 F.3d at 739 (quoting Regents of Univ. of Cal. v. Bakke, 438 U.S.
265, 311-12 (1978)). Chief Circuit Judge Martin pointed out in his majority opinion
in Grutter that the University of Michigan Law School's consideration of race in its
admissions process must serve a compelling state interest and be narrowly tailored
to that interest. Id. at 738. This test was adopted by the Supreme Court in Adarand
Constructors, Inc. v. Pena in which the Court concluded that the Fourteenth
Amendment requires strict scrutiny of all race-based action by state or local
instrumentalities. 515 U.S. 200, 227 (1995).
301. Grutter v. Bollinger, 137 F. Supp. 2d 821, 849 (E.D. Mich. 2001).
discrimination. °2 Nevertheless, Judge Martin, in rejecting the

district court's view, held that the attainment of diversity is a
compelling state interest. For support, he referred to Metro
Broadcasting, Inc. v. FCC,3" 3 in which Justice Brennan cited
Bakke for the proposition that "a diverse student body
contributing to a 'robust exchange of ideas' is a 'constitutionally
permissible goal' on which race-conscious university admission
programs may be predicated."" 4 In addition, he relied on Marks
v. United States" 5 in which the Supreme Court stated that
"[w]hen a fragmented Court decides a case and no single
rationale explaining the result enjoys the assent of five Justices,
the holding of the Court may be viewed as that position taken by
those members who concurred in the judgments on the narrowest
grounds."0 6 For him, Justice Powell's opinion in Bakke, in
permitting the most limited consideration of race, represented the
narrowest ground. Justice Clay, concurring in Chief Judge
Martin's majority opinion, extensively discussed empirical and
statistical evidence,
30 7
which suggests that diversity is a compelling
state interest.
In contrast, Judge Boggs argued in his dissenting opinion
that "the state's interest in a diverse student body, at least as
articulated by the Law School, cannot constitute a compelling
state interest sufficient to satisfy strict scrutiny. 308 In his
opinion, he concentrated on his argument that "[tihe Law School's
efforts to achieve a 'critical mass' are functionally
indistinguishable from a numerical quota,"30 9 which is
unconstitutional under Justice Powell's Bakke opinion. Boggs
argued that the preference accorded racial minorities by the
University of Michigan Law School is different in magnitude from
302. Grutter, 137 F. Supp. 2d at 847-48.

303. Metro Broad., Inc. v. F.C.C., 497 U.S. 547 (1989).
304. Id. at 568.
305. Marks v. United States, 430 U.S. 188 (1977).
306. Id. at 193. See also Mark R. Killenbeck, Pushing Things Up to Their First
Principles:Reflections on the Values ofAffirmative Action, 87 CAL. L. REV. 1299, 1352
(1999) (illustrating why Justice Powell's judgment is controlling).
307. Grutter v. Bollinger, 2002 FED. App. 0170P (6th Cir.), 288 F.3d 732, 766-68.
Patricia Gurin, Reports Submitted on Behalf of the University of Michigan: The
Compelling Need for Diversity in Defense of Affirmative Action, 5 MICH. J. RACE & L.
363 (discussing studies of the impact of diversity on students and arguing that
diversity prepares students to become active participants in a democratic society).
308. Grutter, 288 F.3d at 776.
309. Id. at 789.
the "plus" envisaged by Justice Powell in Bakke.31 0 As the Law

School admitted that a "critical mass" necessitated the admission
of a sufficient number of minority students in order to ensure
that these students were able to contribute to classroom dialogues
and not feel isolated, the concept of a "critical mass" certainly
represented a numerical target.3 1 ' Boggs's conclusion that such a
target is indistinguishable from a numerical quota is reinforced
by an examination of the statistical evidence presented in
Grutter. From 1995-1998, the University of Michigan Law School
consistently enrolled a number of under-represented minority
students, ranging from 13.5% to 13.7% of the class. 12
Considering that law schools are never able to predict accurately
how many admittees will accept offers of admission, this range
represents in reality a fixed number or a de facto quota, especially
when, as in this case, the Law School Admissions Officers
checked on the admission rates of racial minorities almost on a
daily basis. 3 13 However, the majority rejected the
characterization of the School's "critical mass" as a de facto quota
because, unlike the Davis program in Bakke, the School did not
have a fixed goal or target. 1 4 But, if year after year, the number
of minority admittees remains largely constant, then it is
appropriate to characterize a "critical mass" as a target or goal.315
However, Chief Circuit Judge Martin denies that the
enrollment of practically the same number of minority applicants
transforms the concept of a "critical mass" into a quota. 1 6 For
the majority, over time, an admissions process will always
produce some percentage range of minority enrollment, and that
range will necessarily have a bottom or a minimum.3 17 While this
logic is as unassailable as it is simple, it overlooks the point that
the use of race as an individual plus factor would presumably
achieve a different percentage range and bottom than the pursuit
of a "critical mass." In this context, Judge Boggs opined that "[i]t
seems clear to me, at least, that the "critical mass" the Law
School seeks to achieve is only vague and flexible for outsiders
310. Grutter,288 F.3d at 793-94.

311. Id. at 737.
312. Id. at 801.
313. Id. at 802.
314. Id. at 747-48.
315. Id. at 802-03.
316. Grutter,288 F.3d at 747-48.
317. Id. at 748.
not looking at its enrollment statistics"31 and that "[t]he

combination of the Law School's thinly veiled references to such a
target, its 'critical mass,' and relatively consistent results in
achieving a particular enrollment percentage, should convince us
that the Law School's admissions scheme is functionally, and
even nominally, indistinguishable from a quota system."319
Judge Boggs's dissenting opinion indicates that a great deal
hinged in this case on the decision by the Law School to admit a
"critical mass" of under-represented minority students. The
representatives of the Law School admitted during the trial that
a "critical mass is a number sufficient to enable under-
represented minority students to contribute to classroom dialogue
without feeling isolated."32° In pursuing its "critical mass" the
Law School could even rely on Justice Powell's Bakke judgment.
Justice Powell in Bakke accepted that a university could not
provide "a truly heterogeneous environment... without some
attention to numbers."32
" ' In particular, he reasoned that "there
is some relationship between numbers and achieving the benefits
to be derived from a diverse student body, and between numbers
and providing a reasonable environment for those students
admitted." 322 However, Justice Powell assumed that universities
would act in good faith: "a court would not assume that a
university, professing to employ a facially nondiscriminatory
admissions policy, would operate it as a cover for the functional
equivalent of a quota system. '323 The non-discriminatory nature
of the Michigan admissions program was compromised, however,
when the School admitted that, without its search for a "critical
mass," not enough Blacks would be admitted. Thus, the question
must be asked whether the pursuit of a "critical mass" is, in the
circumstances of this case, a more sophisticated form of a quota,
which was declared unconstitutional in Bakke as involving the
318. Grutter, 288 F.3d at 801.

319. Id. at 802-03. See also Judge Gilman's dissent:
The primary problem with the Law School's admissions policy is that the
"critical mass" of minority students that it seeks to enroll is functionally
indistinguishable from a quota. Whether viewed as a percentage or as an
absolute number, the consistency in the minority student enrollment
demonstrates that the Law School has for all practical purposes set aside a
certain number of seats for minority students.
Id. at 816.
320. Id.
322. Id.
323. Id. at 318.
use of race as a group characteristic.

Of course, it may still be argued that the School's efforts to
attain a "critical mass" constitutes a numerical target and does
not amount to a de facto quota. The argument, briefly
summarized, is that a target is only an "expectation" that some
measurable change will occur, thereby allowing flexible statistical
results. However, this argument fails to demonstrate the non-
discriminatory character of targets. Although a pre-determined
quota need not be achieved, the required "measurable change"
may still involve the admission of some applicants who are less
qualified than those who otherwise would have been admitted. In
other words, a flexible numerical requirement remains a
numerical requirement, even though it does not necessarily
achieve a pre-ordained quota.3 24 Professor Alan Goldman also
discusses the ambivalence in the idea of targets in his book
Justice and Reverse Discrimination.32 Goldman's detailed and
sustained argument attempts to show how individuals acquire
rights to dispose of benefits, and he discusses the circumstances
under which these rights may sometimes be suspended in order
to correct errors in the distributive system. Writing in the
context of American affirmative action employment programs, he
questions whether there is or is not "an internal inconsistency in
a policy that requires goals but prohibits quotas." 326 He answers
his question affirmatively, arguing that targets (or goals) produce
statistical results. 327 Goldman observes that goals operate as de
facto quotas, and efforts to meet them often lead to unjustified
reverse discrimination. He suggests that, if the aim of
affirmative action programs is to create an impartial attitude
towards all those who apply for a job, "then the goals and
timetables seem inconsistent in concept and even more so in
practice."3 2 8
Goldman's point that a target is a more sophisticated form of
quota is important because it suggests that the setting of targets
necessarily results, in practice, in the implementation of the
324. See generally ROBERT K. FULLINWIDER, THE REVERSE DISCRIMINATION

CONTROVERSY: A MORAL AND LEGAL ANALYSIS (Rowman and Littlefield 1980).
325. ALAN H. GOLDMAN, JUSTICE AND REVERSE DISCRIMINATION (Princeton Univ.
Press 1979).
326. Id. at 210.
327. Id. at 210-17.
328. Id. at 219.
second version of merit, which involves admission to professional

schools on the basis of race, conceived as a group characteristic,
and implies that discriminatory practices based on this version
would replace practices based on consideration of an applicant's
individual merit and capacities. In effect, his argument implies
that, if a target is merely an expectation that some measurable
change will occur, then it is not necessary to set targets at all, but
to allow the composition of the student body to be determined by
the impartial implementation of the merit principle in its first
form.
If Judge Boggs's characterization of a "critical mass" as a de
facto quota is right, then the School's diversity program is not the
type of diversity that Justice Powell had in mind in Bakke. Bakke
stands for "a diversity that would enrich the pedagogical
activities of a school, a diversity of experiences, outlooks, and
ideas that would challenge its students' settled preconceptions
and open them to new intellectual paradigms." ' 9 In particular,
the "critical mass," which the Law School aimed to attain, does
not satisfy the diversity envisaged by Justice Powell in Bakke
because, to the extent that it is a disguised quota, it is logically
unrelated to the specific function of universities, even if some
minority students in fact do capably contribute to that function.
This stems from the fact that, in its pursuit of the achievement of
a measurable target - its "critical mass" - the Law School would
inevitably have to discriminate against majority applicants if it
cannot achieve its "critical mass" merely by considering race as
an individual factor, or a plus on an applicant's file. Thus, to the
extent that the School admits applicants on the basis of race as a
group characteristic, it is implementing a de facto quota, and race
is, in effect, used as a disguise for remedying past societal
discrimination.33 0
Boggs's argument thus focuses on the absence of a logical
link between the achievement of a "critical mass" and the
diversity that Justice Powell approvingly discusses in Bakke. The
failure by the Law School to tailor its admissions program
narrowly to the diversity envisaged by Justice Powell is
exacerbated by the fact that the program is under-inclusive since
330. The Supreme Court rejected remediation of general societal ills and past
discrimination as a justification for racial classification. See Richmond v. J.A. Croson
Co., 488 U.S. 469, 498 (1989).
disadvantaged White students do not benefit under it, and over-

inclusive since it would likely result in the admission of
advantaged Black students. This latter point is important
because the Michigan program is based on the idea that racial
and ethnic minorities will be prepared to share their life
experiences with fellow students, thereby contributing to a
racially diverse student body with regard to viewpoint,
experience, and opinion. Thus, the assumption that admitted
minority members are representative of their community is easily
rebuffed. In effect, the Law School uses race as an imperfect
proxy for experiential diversity. Professor Carter, in Reflections
of an Affirmative Action Baby, argues that race is an unreliable
proxy for identifying people whose viewpoints can leaven the
intellectual mix.331 He derides that law schools make policy
based on "stereotypes about the different ways in which people
who are White and people who are Black supposedly think."332 '
This, in effect, excludes Blacks who might need preferential
admission the most.
If diversity is to be meaningful, it must relate to the
achievement by the university of its functions, which I identified
in Part VI of this article as the imaginative impartation and
extension of knowledge. If tested in this light, a person's race
may indeed by a "plus," especially in circumstances where a
person's race is likely to contribute to the level of discussion
required at an elite institution, like Michigan. But if race were
merely a "plus" in an applicant's file (on the same level as being a
Vietnamese boat person, or a mature applicant), then it is
unlikely and highly improbable that the number of minority
admittees would substantially remain the same over a four year
period. Indeed, if race as an individual characteristic were used
in order to achieve a diverse student body, it is possible that only
a few minority members might be admitted, namely those who
are able to contribute to and profit from their involvement with
the university mission. Mere presence in a law class of minority
331. STEPHEN L. CARTER, REFLECTIONS OF AN AFFIRMATIVE ACTION BABY (Basic

Books 1991); cf. J. Clifton Fleming, Jr., Thoughts About PursuingDiversity in Legal
Education for Pedagogical Rather Than Political Or Compensatory Reasons: A
Review Essay on Stephen L. Carter's "Reflections of an Affirmative Action Baby," 36
How. L. J. 291, 302 (1993) (arguing that gender and race are appropriate proxies
because women and people of color experience life differently than white males, and
promote diversity in higher education).
332. Id. at 32.
students is not the kind of diversity that raises to the level of a

compelling interest, i.e., it is not genuine diversity. The diversity
that the University of Michigan Law School sought to achieve is
of a different kind: the enrollment of sufficient numbers of Blacks.
Thus, the concept of diversity is ill defined because it is largely
unrelated to the function of the University. Hence, Judge Boggs
correctly states that "it is meaningless to require that a state
narrowly tailor its suspect policies to a purpose that itself is
333
poorly defined."
IX. CONCLUSION
It is not surprising that the Supreme Court decided on
Monday, December 2, 2002, to grant certiorari in Grutter. The
absence of surprise stems from the fact that the federal courts
have reached different conclusions, some embracing diversity in
professional schools (the Sixth Circuit Court of Appeal in Grutter,
and the Ninth Circuit Court of Appeal in Smith), whereas the
Fifth Circuit Court rejected the idea of diversity as a compelling
state interest in Hopwood v. Texas.3 3 1 It was the purpose of this
article to facilitate this review by the Supreme Court in revisiting
DeFunis and Bakke, which have largely molded the relevant
debates in the United States. The Court's decision, expected by
June 2003, will undoubtedly have far-reaching effects on the
admission of minority members to professional schools.
In this article, I introduced two conceptions of merit. First,
"merit" perceived as the possession of a range of individual
characteristics, which are necessary for or likely to be useful in
the performance of the specific function in relation to which merit
is assessed. Second, "merit" understood as the possession of
characteristics, which are capable of producing desirable social
results regardless of whether the characteristics are necessary for
the performance of the function in relation to which merit is
assessed. The latter conception allows race, taken as a group
characteristic, to be used in certain circumstances, for the
achievement of a desired social result, for example, a racially
balanced student body or an increase in the enrollment of
minority students in professional schools. The question whether,
and if so, to what extent, race may be used is determined by a
333. Grutter v. Bollinger, 2002 FED. App. 0170P (6th Cir.), 288 F.3d 732, 793.
334. Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996), affd in part and rev'd in part,
236 F.3d 256 (5th Cir.2000).
choice between these merit conceptions and, ultimately, by the

values which these conceptions comprehend. I have argued that,
in a university context, race may be used as but one factor
amongst many in the selection of university students in a manner
that is compatible with the first conception of merit.

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*Garrick Professor of Law, The University of Queensland, Australia. Visiting

additional6 justification for the School's consideration of race and

6. Grutter, 288 F.3d at 735.

student body and to overcome the under-representation of 13

The DeFunis and Bakke cases illustrate the ambiguity in the

minority students in a professional school in accordance with

III. DEFUNIS IN THE COURT

1. THE FACTS OF THE CASE

delicate, since most of the applicants did not perform sufficiently

24. DeFunis, 507 P.2d at 1173.

effects of past segregation and discrimination.3 6 This policy was

36. DeFunis, 507 P.2d at 1175.

criteria employed by the Law School represented invidious

Washington Law School and could not be affected by a decision on

probably a good indicator since this test is designed especially to

55. DeFunis, 416 U.S. at 328.

might operate to exclude minority applicants from admission.

formal credentials into realistic predictions."6 5 The issue in

65. DeFunis, 507 P.2d at 1174.

the Admissions Policy Statement.7 ° Of course, there was no

70. DeFunis, 507 P.2d at 1185-86.

stretched to accommodate the needs of any race" and that "the

72. DeFunis,507 P.2d at 1178.

argument is difficult to sustain, argued that, as an alternative to

the Equal Protection Clause, although such a program may work

IV. BAKKE IN THE COURTS

1. THE FACTS OF THE CASE

A separate committee, a majority of whom were members of

84. DeFunis, 507 P.2d at 1184-85.

then forwarded to the special admissions committee. 90

90. Bakke, 438 U.S. at 274.

entitled to have his application.., considered without regard to

The judgment of the Supreme Court of California was stayed

the race quota-based admissions procedure at the University

In another case, Rosenstock v. Board of Governors of

is arbitrary in its effect. Moreover, the two-class theory further

127. Bakke, 438 U.S. at 295.

even if they otherwise were politically feasible and socially

128. Bakke, 438 U.S. at 295-97 (citations omitted).

scrutinized.' Indeed, strict scrutiny needs to be applied to

For example, the argument could be made that a preferential

premise that preferential admissions programs need not be

134. Bakke, 438 U.S. at 305.

As observed previously, the discussion in DeFunis focuses on

allegedly unlawful admissions policy."' 4 2 His Honor's insistence

Chief Justice Hale and Justice Hunter would have granted

142. DeFunis, 416 U.S. at 348 (Brennan, J., dissenting).

DeFunis did not provide us with an answer to the question of

150. DeFunis, 529 P.2d at 344.

The invention of substitute tests might be made to get a

154. DeFunis, 416 U.S. at 340 (Douglas J., dissenting).

certain minorities and the manner in which substitute

158. DeFunis,416 U.S. at 335-36 (Douglas, J., dissenting).