The 'Reverse Discrimination' Backlash

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Harvard's brief was written by Archibald Cox '34. Daniel Steiner '54, general counsel to the University, said last week that the decision to prepare an opinion was made as a result of simultaneous but separate discussions in Mass Hall and among a group of Law School professors. He said that Harvard's interests in the case are severalfold:

* Harvard has a strong interest in anything which might affect the over-all status of higher education in the United States;

* The case could alter the admissions policies of all or some of the schools at Harvard, depending upon what grounds it is decided, and;

* Harvard has developed a commitment to minority education and employment and the decision could seriously cripple affirmative action programs, not only for minorities, but for women as well.

Harvard's brief argues that giving favorable weight to minority origin in selecting qualified students for admission is "an important method in reducing the disadvantages suffered by minorities in educational opportunity and professional services," and that it improves the educational opportunities of all students.

"Harvard's long experience in this area highlights the dangers of substituting an iron rule of law for the discretion of academic authorities to make a conscious selection of qualified students from the greatest variety of cultural, social and economic backgrounds in order to improve the educational experience of the whole student body," the brief states.

The basic argument is that the equal protection clause of the 14th amendment does not imply an iron rule of "color-blindness." Although a policy which purposefully excluded minority groups constitutes "hostile" or "invidious" and unconstitutional discrimination by limiting and asserting the inferiority of minority groups, a policy that includes such groups in order to improve the education offered to all carries no such implications.

Harvard contends that the expansion of recent years in the meaning of diversity among students to include students from disadvantaged economic, racial and ethnic groups has meant that race must be a factor in some admissions decisions.

"In Harvard College admissions the committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year. At the same time the committee is aware that if Harvard College is to provide a truly heterogeneous environment that reflects the rich diversity of the United States, it cannot be provided without some attention to numbers," Harvard argues in its brief.

The DeFunis v. Odegaard case will be watched with a great deal of interest by state and private institutions this month, because it is one of vital importance for all colleges and universities. If the Court sustains the Washington Supreme Court decision, institutions will be able to continue their efforts, at least for the time being, in improving minority access to higher education unimpeded by the cries of reverse discrimination.

But if that decision is overturned, a variety of different consequences could result. The Court might rule that the particular admissions procedure of the University of Washington Law School is illegal but giving favorable consideration to minorities in the general applicant pool is not. But it might also issue an historic sweeping decision that race cannot be a factor in any aspect of admissions or hiring practices and that they be strictly on an "as qualified" basis.