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4.2.12
WC: 191694

We were unaware of the pervasive poverty and deprivations – educational, economic, medical,
nutritional – that would make real equality impossible, at least in the near term, for so many black
people, even if legal inequalities were eliminated.

I should have known better even back then, especially after I twice travelled to the Deep South
occasions during the turbulent years of the civil rights movement. My first trip was in the early
1960s as part of a student group that was trained at the Howard Law School to be “observers.”
During that short visit I had little direct contact with local Black residents of the South. I did
meet several Black lawyers and civil rights workers, but they were generally from similar
backgrounds to my own. My second trip was by myself in the early summer of 1965, when the
Harvard Law School sent me to several historically black colleges in an effort to recruit students
for a special program we had instituted to help prepare minority students for law school. I
traveled to several Southern states and lived on the campuses of predominantly Black colleges for
several days. There too I met college students and professors, many of whom came from middle
class homes. I almost certainly met some students from deprived backgrounds, but they
appeared, in the context of a campus setting, no different from students with middle class
upbringings.

I also spent time at several southwestern colleges with Native American and Hispanic students. I
had insisted that our recruitment efforts not be limited to African American students and that they
should include other minorities and disadvantaged groups that sent few if any students to elite law
schools. Even back then, I felt uncomfortable having any decisions, even affirmative ones, based
on race alone. I believed then, and I believe now, that the ideal goal of affirmative action is to
level the playing field by providing a current advantage to individuals who were subject to past
disadvantages, in order to assure future equal opportunities to compete on the merits with
advantaged individuals. That is the theoretical ideal – individual justice to assure that each person
is judged by the quality of their character and other meritocratic criteria – but I soon learned that
in practice group factors inevitably come into play. The real issue is how to strike the appropriate
balance between the theoretical ideal and the practical necessities.

This issue came to the fore in a series of controversial Supreme Court decisions, in which I played
different roles. The first was the case of DeFunis in 1974.87 The second was the case of Bakke in
1997.

The DeFunis case was brought by a white applicant to the law school of the University of
Washington, a state school, who had been rejected. He claimed that if he had been Black, he
would have been admitted under the school’s affirmative action program. The school did not
dispute this claim, but argued that it had the right to try to achieve “a reasonably representation”
of minority students.

The lower court ruled in favor of Marco DeFunis and ordered his admission. By the time the case
reached the Supreme Court, he had nearly graduated and the school told the justices that he
would be allowed to graduate even if the Supreme Court ruled against him. For that reason, the
High Court dismissed the case as moot, thus postponing the decision as to whether it would
uphold race-specific affirmative action programs. But Justice William O. Douglas, probably the

87 DeFunis v. Odegaard, 416 U.S. 312 (1974).

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