Tuesday, April 22, 2014

DeFunis, Defunct

William O. Douglas
Justice William O. Douglas, author of a pivotal dissent in DeFunis v. Odegaard.

The Supreme Court's decision to uphold Michigan's ban on race-conscious admissions in state universities in Schuette v. Coalition to Defend Affirmative Action, No. 12-682 (U.S. April 22, 2014), may well conclude the high court's 41-year record of grappling with this issue. After Schuette and October Term 2012's decision in Fisher v. University of Texas, No. 11-345 (U.S. June 24, 2013), it is hard to imagine what more the Court can say. Public universities may consider race in admissions, but only upon satisfying the narrow tailoring requirements of strict scrutiny. And if a state wishes to ban the practice by referendum or some other exercise in popular politics, it may. Race-consciousness in university admissions is neither compelled nor per se illegal. This time, it really is all over but the shouting.

In this light, I am dusting off a 15-year-old article of mine, DeFunis, Defunct, 16 Const. Commentary 91 (1999) (available for download at http://bit.ly/DeFunisDefunct). Schuette and Fisher end a jurisprudential cycle that began with DeFunis v. Odegaard, 416 U.S. 312 (1974), the Supreme Court's initial decision to accept a case presenting the question of race-conscious university admissions. The occasion merits three cheers for DeFunis — and a moment of silence upon its passing. Call it three ovations and a funeral.

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