Justice Douglas’s dissenting opinion DeFunis provided an analysis that foreshadowed the majority opinion of the Court in Bakke.
Justice Douglas noted that he could agree with the Washington Supreme Court’s decision only to the extent that the admissions policy is truly racially neutral. In that regard, he did not find consideration of race completely unconstitutional as he seemed to favor a method that considered all aspects of every applicant holistically, much like the process afforded to the minority applicants of the Law School. He likened the separate admissions system to creating a “badge of inferiority” similar to the system of segregation found to be unconstitutional in Brown v. Board of Education, 347 U.S. 483 (1954). He ultimately found the record to be lacking on the issue of racial neutrality and concluded that the Washington Supreme Court decision should be overturned and remanded for a new trial aimed at determining this issue. Further, he suggested that consideration of diverse applicants in a race neutral way may be “the key to the problem.” Though he also noted that educators and administrators should still be afforded wide-deference in their admission policies, albeit within certain constitutional limits. This, in many ways, foreshadowed the race-neutral, wide deference policy favored by the majority opinion in Bakke. Of course, the Douglas opinion was a dissenting opinion and DeFunis was never decided on its merits. So, considering Bakke was decided a mere four years later, it was certainly a long time coming.
In short, the DeFunis decision, served to bring affirmative action policies in higher education to the forefront of legal discussion. The opinion sparked debate regarding, among other things, the substantive issues of the case. Namely whether preferential race-based admission policies are constitutional and under what circumstances can admissions policies even consider race. So while many in the legal community, as well as higher education administrators, may have hoped for an opinion with more substantive guidance, DeFunis was the catalyst to more meaningful debates regarding affirmative action.