Seattle lawyer Marco DeFunis died at age 52 in January 2002. Only his hometown newspaper published an obituary, but its front-page placement demonstrated how, once upon a time, DeFunis had been something other than a personal injury lawyer.
Yet amid the scores of recent news reports heralding Tuesday's Supreme Court oral arguments in two landmark lawsuits challenging affirmative action admissions programs at the University of Michigan, DeFunis' name is strangely missing. That absence is unfortunate. Allan Bakke became a household name as a result of the 1978 Supreme Court decision that admitted him to the UC Davis medical school and voided a racial admissions quota. But in 1971, DeFunis' complaint about his rejection from the University of Washington's law school had for the first time confronted the high court with the constitutional issue that again is squarely before the nine justices and that has become one of the roiling ideological issues of our time.
Ironically, DeFunis' lawsuit began not as a challenge to special preferences but as a demand for one. Enlisting his parents and his spouse as co-plaintiffs, DeFunis complained that the law school had rejected him, notwithstanding his family's status as Washington state "residents and taxpayers ... for more than 50 years," while nonetheless accepting scores of out-of-state applicants whose families had never supported Washington's public institutions. "Taxpayers and residents of the state," DeFunis' suit asserted, "are entitled to preference for admission to the state university."
But the law school's response to DeFunis' lawsuit revealed something unexpected: The university had different admission standards for African Americans, Latinos, Native Americans and Filipinos. Only when records showed that more than three dozen such candidates whose grade-point averages and standardized test scores were lower than DeFunis' were accepted was his case transformed into a challenge to racially preferential admissions.
Judge Lloyd Shorett, faced with those glaring statistical disparities, almost immediately ordered DeFunis' admission to the law school. Eighteen months later, the Washington Supreme Court reversed Shorett, and DeFunis appealed to the U.S. Supreme Court. In June 1973, Justice William O. Douglas blocked the state court ruling, and DeFunis began his final year of law school just weeks before the U.S. Supreme Court agreed to hear his appeal.
