History

DeFunis v. Odegaard was the first time a challenge to a higher education affirmative action policy was brought before the U.S. Supreme Court. The petitioner, Marco DeFunis Jr., was a white male who applied to and was rejected by the University of Washington School of Law for the class beginning in September of 1971. He claimed this was the result of the Law School improperly considering race in their admissions program.

Generally, admission to the Law School depended almost entirely on a student’s undergraduate grades and LSAT scores. Most applicants were assigned what was called the Predicted First Year Average, which was calculated by a formula that combined the applicant’s LSAT scores and grades in their last two years of undergrad. Students with averages of a 77 or higher were usually granted admission. Those with a score of between 77 and 74.5 were considered part of the “middle group” of applications and were reviewed later in the admissions process by the admissions committee. And those with an average of below 74.5 were generally rejected. However, if an applicant indicated that they were a minority, then less weight would be given to their Predicted First Year Average in lieu of “a total judgmental evaluation as to the relative ability of the particular applicant to succeed in law school.” Although considered among each other, the minority applications were never directly compared to the rest of the applications. In short, minority applicants were granted a holistic determination not afforded to their non-minority counterparts. 

Under this process, 36 minorities were admitted with scores lower than DeFunis, and 30 would have been rejected if they were considered under the general admission process.  DeFunis sued in Washington Superior Court claiming the Law School violated the Equal Protection Clause of the Fourteenth Amendment, the Washington Constitution, and that the admissions policy was arbitrary and capricious. He requested an injunction granting him admission into the Law School. The Superior Court, finding that the Law School’s policy violated the Equal Protection Clause, granted DeFunis’ injunction, and ordered him to be admitted.  Although he was admitted in the Fall of 1971, the Law School appealed to the Washington Supreme Court.

In an opinion issued on March 8, 1973, the Washington Supreme Court reversed the trial court’s ruling that the admissions policy was unconstitutional. In applying a strict scrutiny level of review, the Washington Supreme Court found the admissions policy did not violate the Equal Protection Clause and that the Constitution did not prohibit considering race as one factor among many other factors. It further found that the admissions policy was not arbitrary and capricious. However, by the time the Washington Supreme Court issued its decision, DeFunis was in his second year of law school.  He nonetheless filed a petition of certiorari to the Court, which was granted on November 19, 1973. As a result, the Court issued of a stay of the Washington Supreme Court’s judgment pending its own decision. 

By the time the Court considered DeFunis’s case he was in his third year of law school, registered for his final semester of law school, and poised to receive his J.D.  As a result, the Court held that the case was moot and vacated the judgment of the Washington Supreme Court. It found that “[t]he controversy between the parties ha[d] . . . clearly ceased to be definite and concrete and no longer touch[ed] the legal relations of parties having adverse legal interests.” Much to the chagrin of the four dissenting justices, the majority did not reach the substantive issues of the case.