September 18, 2019


The recent encounters between right and left on the issue of affirmative action and preferences have been particularly intense. With the debate in California on “>Proposition 209’s ban on racial and ethnic preferences at California’s public universities and colleges) and nationally around the US Supreme Court’s decision in the Schuette case (about whether voters can prohibit preferences in government programs); most observers perceive the polarized positions as a confrontation between liberals and conservatives—the former pursuing preferences, the latter opposed.

In fact, in late March the“>Justice William O. Douglas in one of the earliest (if not the earliest) Supreme Court cases on the subject of race and ethnicity based affirmative action in university admissions, “>Time analysis at the time he retired.

Notwithstanding his liberal credentials and roots, Douglas’ opinion (which was offered in a case that the court ultimately decided to avoid ruling on its merits since the plaintiff, Marco DeFunis, was about to graduate from law school, ostensibly rendering the case moot) was as clear a rejection of the logic and impact of race-based preferences as one can imagine.

At some point over the past forty years the principles of color-blindness, of government refusing to categorize or award benefits to individuals on the basis of immutable characteristics of race and ethnicity, got lost. Douglas’ uncompromising language is a good reminder of how far we have come and how one needn’t be “an ultra-conservative partisan” to oppose racial and ethnic preferences.

There is no constitutional right for any race to be preferred. The years of slavery did more than retard the progress of blacks. Even a greater wrong was done the whites by creating arrogance instead of humility and by encouraging the growth of the fiction of a superior race. [416 U.S. 312, 337]   There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner.
The State, however, may not proceed by racial classification to force strict population equivalencies for every group in every occupation, overriding individual preferences. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized. The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles, Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans and not to place First Amendment barriers against anyone.
If discrimination based on race is constitutionally permissible when those who hold the reins can come up with “compelling” reasons to justify it, then constitutional guarantees acquire an accordion-like quality. ……All races can compete fairly at all professional levels. So [416 U.S. 312, 344]   far as race is concerned, any state-sponsored preference to one race over another in that competition is in my view “invidious” and violative of the Equal Protection Clause.

A giant in the liberal pantheon of the US Supreme Court would likely be shocked to see the arguments that are offered today by those who claim to be his heirs. On the fortieth anniversary of this seminal opinion, it's good to be reminded of basic principles of our system of justice.