The DeFunis Case and the Constitutionality of Preferential Treatment of Racial Minorities Author(s): Richard A.

Posner Reviewed work(s): Source: The Supreme Court Review, Vol. 1974 (1974), pp. 1-32 Published by: The University of Chicago Press Stable URL: http://www.jstor.org/stable/3108703 . Accessed: 12/07/2012 12:26
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RICHARD

A. POSNER

THE

DEFUNIS

CASE

AND OF

THE

CONSTITUTIONALITY PREFERENTIAL RACIAL

TREATMENT

OF

MINORITIES

In DeFunisv. Odegaard,l the SupremeCourtwas askedto decide whether the Equal ProtectionClauseof the FourteenthAmendin favor of members ment forbidsa stateuniversityto discriminate of racialor ethnic minoritiesseeking admission to its law school. The Courtdeclinedto decide the case on the merits,holdingthat it was moot. I will consider,first,whetherthe decisionon mootness was correct, and second, how the Court should have decided the constitutional issueif it hadreachedit. The facts of the case can be summarized briefly.In 1971 Marco DeFunis appliedfor, and was denied, admissionto the first-year classof the Universityof WashingtonLaw School, a state institution. He was one of some 1,600 applicants for 150 places in the class.The law school'sadmissions processinvolved,first, determinfrom the ing, collegegradesand law school aptitudetest applicant's (LSAT) results,his expectedgrade-point averagein the first year
Richard A. Posner is Professor of Law, The University of Chicago and Senior Research Associate, National Bureau of Economic Research. The author wishes to acknowledge the very helpful comments of Gerhard Casper and Geoffrey R. Stone on an earlier draft of this article.
194 S. Ct. 1704 (1974).

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of law school. If the expected average was above a certain level, the applicant was automatically admitted. Below this level the applicants were divided into two groups. One group consisted of all applicants who were black, Chicano, American Indian, or Filipino; the other, of the remaining applicants. About 20 percent of the places in the entering class were reserved for members of the first group. An effort was made to identify the most promising members within each group but qualifications were not compared across groups. Thus, 36 of the 37 admittees in the first (favored minorities) group had expected first-year averages lower than that of DeFunis, who was one of the rejected applicants in the second group. The purpose of according preferential treatment to the four minority groups was to increase their representation in the law school student body and in the legal profession; members of the favored minorities are a much smaller fraction of the legal profession of the United States than of the total U.S. population. DeFunis brought an action for injunctive relief against the university, charging that it had discriminated against him on account of his race (white), in violation of the Equal Protection Clause. The trial court agreed, and ordered him admitted to the first-year class.2 On appeal, the Washington Supreme Court reversed.3 Its order was stayed by Mr. Justice Douglas, however, pending review by the United States Supreme Court.4 By the time the case was briefed in the Supreme Court, DeFunis-who had been admitted under a temporary restrainingorder entered before the trial court's final decision-was in his final year of law school and counsel for the university advised the Court that DeFunis would be permitted to complete the year regardlessof the outcome of the litigation. It was
2The relief granted by the trial court was arguably inappropriate. DeFunis had not proved that, but for the challenged discrimination, he would have been admitted. Hence the only relief to which he was entitled, assuming his constitutional argument prevailed, was that the admissions committee be required to reconsider his application under criteria free from racial bias. Since all of the places in the entering class had been filled, however, the committee would have had to make a hypothetical determination whether, had it considered DeFunis's application without a racial bias, it would have admitted him. Given this complication, perhaps the court was justified in simply ordering DeFunis admitted, especially since his expected first-year grade-point average was close to the level at which applicantswere admitted automatically. 382 Wash. 2d 11 (1973). 4 The stay order seems not to have been reported.

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THE DeFUNIS CASE

on this basisthat the Court held the case moot. Mr. Justice Brennan, in an opinion joined by Justices Douglas, White, and Marshall,dissented, on the ground that the case was not moot; they did not reach the merits. Mr. Justice Douglas filed a separateopinion in which he declared that preferential racial treatment was unconstitutional but that the case should be remanded for a trial on the question whether the law school aptitude test discriminates against members of disadvantaged minorities. I. MOOTNESS An unkind critic of the Court has described the rationale by which DeFunis's claim was held to be moot as follows: "hard cases are moot."5 But this assessment may be too harsh. Respondents' counsel made a reasonably definite commitment that DeFunis would be permitted to complete his third year of law school regardless of the Court's decision. To be sure, he did not addressthe various possibilities suggested by Mr. Justice Brennan in his dissenting opinion-that DeFunis might flunk out, or have to withdraw because of illness or lack of funds, before the end of the year-but then these possibilitieshad never been suggested before.6 Although the major5To which a superficial reply might be: if the Court had merely wanted to "duck" a difficult case, it would not have granted certiorari. But perhaps at the time of granting certiorari it did not recognize the extraordinarycontroversiality of the case, as manifested by the number of amicus curiae briefs filed (most of them after certiorari had been granted). I count twenty-eight amicus briefs, and while all but seven supported the respondents, those seven included the National Association of Manufacturers,the Chamber of Commerce of the United States, the Anti-Defamation League, and the AFL-CIO. The briefs supporting the respondents included a number of minority-group organizations, universities, law schools, and the American Bar Association. The Equal Employment Opportunity Commissionsought to file an amicus brief on behalf of the respondents but it was rejected because of the objection of the Solicitor General of the United States. 6 Mr. Justice Brennan's opinion is a bit misleading in this respect. He states that if one of the contingencies compelling DeFunis's withdrawal were to occur, "'Mr. DeFunis would have to take some appropriateaction to request admission for the remainder of his law school education, and some discretionary action by the University on such request would have to be taken."' 94 S. Ct. at 1721, quoting the statement on mootness submitted by the respondents to the Court. (Emphasis supplied by the Justice.) The quoted passage was not, however, addressed to the possibility that DeFunis might have to withdraw from law school but to the concern expressed by petitioners in their statement on mootness-that the university might expel DeFunis if the Court rendered a decision adverse to him before the completion of the academic year. As to that the quotation is also misleading,for a few sentences later respondentsstate: "it would be most unlikely

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ity dismissedthese possibilities,somewhat cavalierly, as "speculative contingencies,"7it might quite reasonably have interpreted the representations made by respondents' counsel as implying that if DeFunis were forced to withdraw before completion of his third year, he would be accorded the same readmissionprivileges as any other student. This would be in the spirit of counsel's representationthat DeFunis would graduate in June 1974 regardlessof the outcome of the case.8 Any doubt on this score could have been cleared up by a letter from the Clerk of the Court to the university's counsel seeking clarification of his representation;or the Court could have held the case on its docket until advised that DeFunis had graduated on schedule.9But the Court's failure to adopt either of these measures is hardly proof that it was simply trying to duck a tough issue. The suspicion that it was trying to do just that may stem from the lengths to which it had gone in previous cases to find that an apparently moot case was not moot after all. A notable example, much emphasizedin the parties'statementson mootness in DeFunis (both sides urged the Court not to find the case moot), is Roe v. Wade,'1 where the Court just the previous Term had held that a pregnant woman's suit attacking a state law against abortions did not become moot when she gave birth. But the Wade case can be distinguished from DeFunis. Since Mrs. Roe asserted that she would continue to have sexual relations, and thereby run the risk of having another pregnancy which she might want to abort, her current state of pregnancy was not an essential part of her stake in overturning the statute. In contrast, once DeFunis graduated from the University of Washington Law School, there was no chance whatsoever that he would one day reapply for admission to the J.D. program that he had completed. The only question relevant to mootness, therefore,
that the university would make a decision preventing him from completing the balance of his course of study for the J.D. degree." Brief for Respondents, p. B-5. And elsewhere they state flatly: "regardless of the outcome of this litigation Mr. DeFunis will graduate with his class in June, 1974."Brief for Respondents, p. 2. 7 94 S. Ct. at 1707, n.4. 8 See note 6 supra. 9The Court's decision was rendered on 23 April 1974. DeFunis was expected to be graduated in June, and indeed he was. 10410 U.S. 113, 125 (1973). See Epstein, Substantive Due Process by Any
Other Name: The Abortion Cases, 1973 SUPREME COURT REVIEW159.

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was whetherthe Courtwas correctin assuming thatDeFunis's prosfor its could not decision. be affected pects graduating by There is anotherdistinguishing factor. If the Courtinsistedthat stata woman challengingthe constitutionality of an anti-abortion ute be pregnantat the time of decision,it would never be able to in casesbroughtby the decidethisimportant constitutional question individuals mostseriouslyaffectedby those statutes.True, it might be ableto decidethe questionin a case broughtby anothersort of plaintiff,for examplean abortionclinic, that was not affectedby that the mootthe lengthof a pregnancy.1l But it seemsanomalous ness doctrineshouldpreventpeople who are seriouslyharmedby of unconstitutional statutesfrom obtaininga judgthe enforcement them. Since the courseof ment by the Supreme Courtinvalidating to is the J.D. degree normallyonly three years, and study leading in this litigation countrya leisurelyprocess,somethingof the same sortof dangerwas inherentin DeFunis's case,but it was greatlyatthanotherwisethatthe case tenuated andit is reallymoresurprising Court.It would not havebecome did becomemoot in the Supreme to the law moot if the trialcourthadnot orderedDeFunisadmitted him on had been stayed appeal,or school, or if its orderadmitting if the university's counselhad refusedor been unableto makethe that through representations he did,or if the casehadnot progressed None of the courtsso slowly, or if DeFunishad sought damages.12 thesewas a remotepossibility. Mr. JusticeBrennan's opinionalso arguesthat the constitutional issuewas boundto recurand thereforemight as well be decidedin the first case to raiseit, since the case was fully ripe for decision. it is not unripeis to abolish Butto say thata caseis not moot because the doctrineof mootness.And the factualpremiseof the argument The next caseto reachthe Courtmay not be identiis questionable. to the DeFuniscase. It may be a case cal in all relevantparticulars is basedon a desireto increasethe admission in which preferential
11Such litigants were indeed before the Court, along with Mrs. Roe, in the abortion litigation. 12Originally DeFunis did seek damages as well as an injunction, but the trial court dismissed his damage claim for want of jurisdiction. He could have filed a damage claim in federal court under one of the Civil Rights Acts, such as 42 U.S.C. ? 1983, although proof of damages would have been difficult. DeFunis had already been admitted by several other law schools: how would he have established the amount of harm that he suffered as a result of being turned down by a law school that he preferred?

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diversity of the student body and thereby enrich the students' educational experience, rather than to increase the proportion of minority applicants in the interest of social justice or a more "balanced" legal profession. Such a difference in the justificationoffered could be relevant to the outcome of the case. The next case may involve a different type of educational experience, or may arise in a different context altogether, such as employment. Its record may illuminate the problems involved in defining and proving membership in a racial or ethnic minority,13as neither the record nor the amicus briefs in DeFunis do. In short, the next case may well be different from DeFunis in a relevant respect, and perhaps easier to decide. Even if it were inevitable that a case just like DeFunis would some day be brought to the Court, the decision of that case might be rendered easier by intervening cases in which the Court had a chance to examine the general issue of preferential racial classifications in other contexts. Hence it is not so clear that dismissal in DeFunis "clearly disservesthe public interest."14 Finally, Mr. Justice Brennan cited a number of cases in which the Court had rejected mootness argumentsbased on the defendant's having voluntarily ceased or agreed to cease engaging in the practice sought to be enjoined.15They were cases where a government agency such as the Federal Trade Commission, acting on behalf of consumers or some other broad group, had sought to enjoin an unlawful practice. If the injunction had been denied on the ground of mootness the defendant would have been free to resume the unlawful activity and the agency would have had to begin the proceeding all over again. Because the issuance of a formal decree would make a difference to the agency, viewed as the representativeof the consumersor other group whose interests it is charged with protecting, the case is not mooted by the defendant's voluntarily desisting from the challenged practice. The only stake to the plaintiff in the DeFunis case, in contrast, was DeFunis's interest in getting into and graduating from the University of Washington Law School, and that interest, if one accepts the representation of the respondents' counsel, would not be impaired by failure to issue a formal decree compelling his admission. The cases cited by Mr. Justice Brennan
13 See text infra, at notes 28-31.

1494 S. Ct. at 1722 (Mr. Justice Brennan, dissenting). 15 E.g., United States v. W.T. Grant Co., 345 U.S. 629 (1953).

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would havebeen pertinentif the actionhad been a classaction,or had been brought by the Departmentof Justice or some other agency chargedwith protectingthe public againstthe practices afterthe universityhad refusedto challenged by DeFunis,perhaps unchangeits admissions policy once thatpolicy hadbeen declared lawful by the SupremeCourt.But the case before the Court was not such a case.
II. THE REASONABLENESS OF REVERSE DISCRIMINATION

that Comingto the merits,I want firstto analyzethe reasons areor could be offeredin supportof the kind of "reverse discrimination"practicedby the Universityof WashingtonLaw School,16 andsecondto assess the constitutionality of the practice.
A. "CULTURALLY BIASED" EXAMINATIONS

The reasonemphasized by Mr. JusticeDouglasin his dissenting was that the conventional of law school success opinion predictors areinaccurate with respectto members of disadvantaged minorities. Thereis apparently no basisfor this conjecture.'7 Be that as it may, had this been the rationaleof the Universityof WashingtonLaw School'sadmissions procedure-whichit pretty clearlywas not-the case would not have been one of preferential treatmentat all, and so I will not discuss this ground.
B. RACE AS A SURROGATE FOR OTHER, NONRACIAL CHARACTERISTICS

A frequentlysuggestedbasis for preferentialtreatmentis the desireto increasethe diversityof the studentbody in the hope of therebyenhancingthe qualityof the students'educational experi16For a prescient discussion of the problems of reverse discrimination, see Kaplan, Equal Justice in an Unequal World: Equality for the Negro-The Problem of Special Treatment, 61 Nw. U. L. REV.363 (1966). 17 See Ely, The Constitutionality of Reverse Racial Discrimination, 41 U. CHI. L. REV. 723, 725-26 n. 22 (1974). A variant of Mr. Justice Douglas's argument, also suggested in his opinion, is that even if the conventional criteria predict academic performance as accurately for the minority-group members as for others, they do not predict the value of their contribution to society as lawyers (i.e., after graduation) so well. Such an argument may perhaps have been implicit in the University of Washington Law School's expressed basis for its preferential admissions policy-to increase the proportion of minority-group members in the legal profession. But it seems best to discuss this argument later on as part of a more general consideration of the underrepresentationargument for preferential treatment.

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ence. An amicus curiae brief filed on behalf of Harvard University strongly advanced this ground. Since this was clearly not the University of Washington Law School's ground for a preferential admissions policy and could not have justified its policy,18 the diversity argument for preferential treatment seems irrelevant to the disposition of the DeFunis case.19But the argument is likely to be made in future cases, and it illuminates the fundamental objection to preferential treatment of members of racial or ethnic groups. For a diversity argument to be convincing, it must identify a differentiating factor that is relevant to the educational experience. It would make no sense to argue that in selecting the entering firstyear class a law school should strive for diversity in the height of the students, or in their weight, pulchritude, posture, depth of voice, or blood pressure, or that it should give a preference to (or disfavor) albinos, or people with freckles or double chins. Diversity in these superficial physical respects contributes nothing of value to the legal education of the students. Race per se-that is, race completely divorced from certain characteristics that may be strongly correlated with, but do not inevitably accompany, it-is also, and in a similar sense, irrelevant to diversity. There are black people (and Chicanos, Filipinos, etc.) who differ only in the most superficial physical characteristicsfrom whites-who have the same tastes, manners, experiences, aptitudes, and aspirationsas the whites with whom one might compare them (here, white law school applicants). To give such people preferential treatment to the end of increasing the diversity of the student body would be equivalent to giving preferential treatment to albinos-were it not that race is frequently correlated with other attributes that are arguably rele18 The law school set a target of 20 percent minority admissions, which is roughly equal to the proportion of the four favored minorities in the United States population as a whole. There would appear to be no rational connection between seeking proportional representation of minorities, on the one hand, and enhancing the quality of the educational experience by providing some representation for members of minority groups who could not gain admission on the basis of academic promise alone, on the other. 19 Harvard University must have been concerned lest the Court decide in favor of DeFunis on such a broad ground that preferential treatment in university admissions would be forbidden no matter what its basis. This conjecture derives support from the acknowledgment in the brief (see pp. 2, 14-18) that the diversity justification is mainly relevant to undergraduate rather than graduate education.

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vant to meaningful diversity, and albinismis not. The average black applicant for admission is more likely than the average white to have known poverty and prejudice first hand, and his experience, communicated to his fellow students (and teachers) both inside and outside of the classroom, might enrich the educational process. Race in this analysis is simply a proxy for a set of other attributes-relevant to the educational process-with which race, itself irrelevant to the process, happens to be correlated.20The use of a racial proxy in making admissions decisions will produce some inaccuracy-blacks will be admitted who lack the attributes that contribute to genuine diversity-but this cost of using a racial proxy may be less than the cost, which is saved, of having to investigate the actual characteristicsof each applicant. The difficulty with this approach is that it closely resembles and could be viewed as imparting legitimacy to the case for regarding discrimination against racial minorities as a proper, because (generally) efficient, form of conduct. There are several possible explanations for the presence of racial and ethnic discrimination. One is sheer irrationality; another is exploitation; another the desire to limit competition. But it may be that most discrimination in today's America can be explained simply by the cost of information.21Suppose that a particular racial or ethnic identity is correlated with characteristicsthat are widely disliked for reasons not patently exploitive, anticompetitive, or irrational. A substantial proportion of the members of the group in question may be loud, or poor,22or hostile, or irresponsible,or poorly educated,28or dan20 Thus the Harvard University brief describes "minority status" as "a useful although not invariably reliable indicator of a kind of special social, economic or cultural background."P. 28; see also pp. 14, 16. 21 See Arrow, The Theory of Discrimination, in ASHENFELTER & REESE,eds., IN LABOR DISCRIMINATION MARKETS 3, 24-26 (1973); Phelps, The Statistical Theory

Economics of Discrimination, 63 AM. ECON. REV. PAPERS& PROC. 287, 292-94 (1973). For some empirical evidence see Ransom & Sutch, The Ex-Slave in the

REV.659 (1972); Stiglitz, Approaches to the of Racism and Sexism, 62 AM. ECON.

Post-Bellum South: A Study of the Economic Impact of Racism in a Market EnHIST.131 (1973). vironment, 33 J. ECON. 22 Poverty is another proxy for the actually disfavored characteristics. Some poor people (college students, clergymen, and bankrupts are examples) are distinguishable from the nonpoor mainly by the fact of being poor rather than by social or cultural differences.
23 On black versus white educational achievement see COLEMAN, et al., EQUALITY OF EDUCATIONALOPPORTUNITY 20-21, 217-33 (1966).

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gerously irascible, or ill-mannered, or have different tastes, values, and work habits from our own, or speak an unintelligible patois.24 To be averse to association (in housing, recreation, schooling, or employment) with an individual because he possessed such a characteristic would not ordinarily be regarded as a sign of prejudice. To be "prejudiced"means, rather, to ascribe to the members of a atgroup defined by a racial or similarly arbitrary characteristic25 tributes typically or frequently possessedby members of the group without pausing to consider whether the individual member in question has that characteristic-sometimes without being willing even to consider evidence that he does not. The extreme bigot applies an irrebuttable presumption that every member of the group has the characteristicthat he dislikes. The moderate bigot applies a rebuttable presumption to the same effect-and all of us are at least moderate bigots in some areas of life. The history of this country contains examplesof the unreasoning type of racial and ethnic prejudice, of exploitive discriminationillustrated by the treatment of the American Indian in the nineteenth century and by the enslavement of the black-and of the anticompetitive sort as well (e.g., exclusion of women from various occupations). But, today at least, it may be that most prejudice and discrimination are a product of the cost of making individual distinctions within racial and ethnic groups. This is a type of economically efficient conduct similar to a consumer's reluctance to try a new brand or, more generally, to carry the process of searching for products beyond the point where the cost of searching is equal to its benefit in enabling a better purchase to be made.26It is perfectly rational for an individual to support the exclusion of Armenians, or Jews, or blacks from his club if his experience, whether first or second hand, is that most or very many members
24 The proportion of the racial or ethnic group who actually possess the disfavored characteristic may, of course, be exaggerated, since obtaining accurate information about the characteristics of the average member of the group may be costly too. 25An "arbitrary characteristic" in this sense is one whose only significance is as a proxy for some other characteristic. To dislike short people because one finds them repulsive is not prejudice; to dislike short people because one thinks that short people tend to have aggressive personalities is an example of prejudice, assuming that not all short people in fact possess such personalities.
26 See OF INDUSTRY Stigler, The Economics of Information, in THE ORGANIZATION 171 (1968).

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DeFUNIS CASE THE

11

that he likes in a of these groups do not have the characteristics andthereis no scarcityof eligible social (or business)acquaintance from other groups. applicants is often a rationaland efficientform To say that discrimination of behavioris not to say that it is socially or ethically desirable. mustneverbe confusedwith "good"or "right."More"Efficient" there is an important distinction to be drawnbetweenprivate over, discrimination and discrimination that is compelled,practiced,or the or encouraged by government, that is practicedby a monopolist.27But I am not interested in the normative basis of antidiscrimi-

nationpolicy. My purposein notingthat much discrimination may in termsof the costs of information be applicable is, rather,to sugfor treatgest a doubtaboutthe meritsof the diversityjustification That it racial minorities justification, will be ing preferentially. rests on the correlation between racial identity and the recalled, of characteristics that promotemeaningful diversity,and possession a particon the whether cost of therefore, implicitly, ascertaining ular member of the racial group actually possessesthe desired be characteristic. Could not a policy againsthostile discrimination undermined rooted in by a programof benevolentdiscrimination the samehabitof mind-that of usingraceor ethnicoriginto establish a presumption, in the case of a raciallypreferential admissions a some other conclusive that the individual one, program possesses as well, that is, some educationally attribute relevantcharacteristic such as a background of deprivation or a culturaldifference? The is underscored the fact that the the wellhostile and danger by seemto be treatingrace as a proxy for the disposeddiscriminators sameset of characteristics. The characteristics that universityadmissionsofficersassociatewith "black"are the distinctivecultural
27Professor Becker's analysis of discrimination, BECKER, THE ECONOMICS OF DISCRIMINATION (2d ed. 1971), indicates that governmental or monopolistic enterprises are more likely to practice discriminationthan private, competitive ones. I have argued elsewhere that this insight could provide the basis for a functional definition of the "state action" requirement of the Fourteenth AmendANALYSIS OF LAW 300-03 (1973). There is, to be ECONOMIC ment. See POSNER,

sure, a certain tension between a theory like Becker's in which racial discrimination is treated as a taste for not associatingwith the members of a racial minority, and the information-costs theory on which my discussion in this article builds; but I believe that Becker's results continue to hold if his "taste"for discriminating is reinterpreted as a proxy for other tastes (e.g., for not associating with people who have a lower income or different culture or lower level of educational achievement).

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attributes of many black people who have grown up in an urban slum or in the rural South, and these are the same characteristics that the white bigot ascribesto every black, although he uses a different terminology (e.g., "lazy" rather than "unmotivated"). I am not making the familiar argument that the member of the favored minority is humiliated by being singled out for preferential treatment. He may or may not be. My point is rather that the use of a racial characteristicto establish a presumption that the individual also possesses other, and socially relevant, characteristics exemplifies, encourages, and legitimizes the mode of thought and behavior that underlies most prejudice and bigotry in modern America. This point is reinforced by considering some features of the actual implementation of a policy of racial preference. Here I shall supplement the meager record of the DeFunis case with information obtained from discussions with people involved in the law school admissionsprocess. (This will also serve to illustrate why it is incorrect to assume that the next case to reach the Court on the question of racial preference in university admissionswill add nothing to what the record of DeFunis contains on the question.) To administer a racial-preference program one needs an operational definition of membershipin the favored group. The applicant cannot be relied upon to classify himself correctly. The correct racial classification is not always obvious; and since a benefit attaches to membership in particular racial groups, applicants have an incentive to misrepresent their race. Thus admissions officials confront the problem both of determining what constitutes membership in a racial group and of requiring appropriateevidence that an applicant belongs to it.28In the case of blacks, it is necessary to determine what percentage of Negro ancestry should be required of an applicant claiming preferential treatment as a black. Additional problems of definition, and also of proof, arise with respect to Chicanos. If the president of Mexico marries an American woman and they have a child who is brought up in the United States, is the child a Chicano? Or is the term meant to imply some connection
28 There is a good discussion of the problems of racial classification created by schemes of benevolent racial discrimination in BITTKER, THE CASE FORBLACK REPARATIONS ch. 10 (1973). It should be noted that, according to the record, the

University of Washington used self-classification, but it may be questioned whether this is a viable policy in the long run.

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13

with life in a barrio? With regard to the problem of proof, Chicanos are less distinctive in physical appearance than most blacks; and the possession (or lack) of a Spanish surname is not decisive evidence since Puerto Ricans, Spaniards,and Latin Americans other than Mexicans also have Spanish surnames, and since a Chicano might be the product of the union of a Chicano woman and a nonChicano man. Similar problems exist with respect to American Indians.Many people have some Indian blood without being recognizable as Indian or having a characteristically Indian name. This problem could be avoided by limiting preferential treatment to Indians on reservations,but such a limitation would be difficult to justify to Indians who have recently (or not so recently) left the reservation and may have encountered substantial difficulties in adjusting to life on the outside. A simple solution to all such problems is to delegate the determination of whether an applicant is entitled to preferential treatment to the student association for the group in which he claims membership (the Black Students' Union, etc.), but the dangers of serious abuse in such a course are too great.29 My point is not that the administrativeproblems, 30 and therefore
29It seems that such organizations define membership in the racial or ethnic group which they represent in terms of an individual's commitment to the political goals of the organization rather than in terms of "objective" (genealogical) factors. This suggests, incidentally, an issue DeFunis might have raised but did not. Apparently he could have argued with some force that the members of the University of Washington Law School's admissions committee, especially the student members, were giving preferential treatment to political activists of a left or liberal persuasion; that such treatment, meted out by a state institution, violated the First Amendment; and that DeFunis was harmed by this preference since he was not politically active. The evidence that might support such an argument is reviewed in Chief Justice Hale's dissenting opinion in the Supreme Court of Washington. DeFunis did argue that the admissions procedure was arbitrary-it was in the context of evaluating that argument that Hale discussed the evidence in question-but he did not make a First Amendment claim; nor did he press his challenge to the arbitrarinessof the admissions procedure in the Supreme Court. The chances are great that student members of a university committee will be drawn disproportionately from the ranks of left and liberal political activists, and will, when evaluating applicants for admission under standards that allow them a broad discretion, give a preference to applicants having similar political views. In the case of a state institution, the practice would seem to be a clear violation of the First Amendment. 30 Some of them of the universities' own making. For example, some American Indians do not like to be referred to by that term; they prefer "native American." Out of deference to their sensibility (and without regard to the fact that

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sions shouldbe decisiveagainstadoptionof such a program.The of definitionandproof are relevantto the presentdiscusproblems the distinction sion becausethey illustrate between racialor ethnic for which that idenidentityper se and the relevantcharacteristics is a a has so little Negro blood that it proxy. Suppose family tity all culhasbeen able to passas white and has done so, suppressing turaltraitsthat might betrayits "true"identity. The family has a child, who has been broughtup as a white but knows that he has some Negro ancestorsand who, in applyingfor admission to law claims to entitlement treatment as a black. school, preferential Shouldhis claimbe honored?If it is, is not the law school'saction similarto the decisionof a country club to deny fundamentally this individual on the sole groundthat it does not admembership mit blacks?If the admissions committeetakes the positionthat a black "makesa difference," if only single great-great grandparent as a matterof administrative convenience,on what basiscould one criticize the country club (or employer, or school board) that reachedthe sameconclusionon the sameground? Anotherpoint that mustbe considered is that when race is used as a proxy for characteristics to be relevantto the educathought tionalexperience, discrimination againstpeoplewho havethe charthe foregroundof the DeFunis case, since DeFunis did not claim that he possessed of povany of the characteristics-a background cultural the of a victim of diserty, handicaps, experience being etc.-for which in one the four of favored crimination, membership groupsmight have been a proxy. Suppose,however, that DeFunis had been an Appalachian white who had encounteredand overcomegreatereconomicandculturalhandicaps to obtainingan education and preparinghimself for a careeras a lawyer than some fractionof the applicants accordedpreferential treatment on racial
other native-born Americans may consider the Indians' attempt to appropriate the term "native American" for their exclusive use rather presumptuous), the admissions form of one university that has a preferential admissions policy toward Indians contains a box in which the applicant can check "native American." Many non-Indian Americans born in this country check the box without knowing that the term is limited to Indians. And so whenever an applicant does check the box, the university sends him a follow-up letter asking him whether, in doing so, he meant to indicate that he was an American Indian.

costs, of implementing a program of racial preferences in admis-

acteristics, but not the racial identity, results. This point was not in

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It would still be possibleto justifyhis exclusionfrom the grounds.3' favoredclass on the ground of administrative convenienceby ina that individuals are a greater voking presumption disadvantaged of white the than of favored applicants.The proportion groups resultof deferringto administrative costs in this instance,however, would be systematically to discriminate subagainstdisadvantaged within do for no the white and to so better reason groups majority, thanthat the grouplacks one of the racialor ethnic characteristics that are used for the sake of administrative convenienceto determine entitlement treatment. to preferential I havedwelledso long on the diversityargument for preferential treatment becauseit is the one argument that seemsat first glance not racialistic at all. The argument is not that one race shouldbe preferredover anotherbut that a racialpreferencewill benefit all members of the studentbody, regardless of race, by enrichingthe educational Yet if one looks a little more closely at the experience. it turns out inconto rest on a premisefundamentally argument sistentwith that of a policy againsthostilediscrimination, for such a policy, if it is to be effective,requires rejectionof administrative a convenienceas justificationfor using racial criteriato allocate benefitsor imposeburdens.
C. RACIAL PROPORTIONAL REPRESENTATION

Where, as in the DeFuniscase itself, a racialpreferenceis based of lawyersof a parsquarelyon a desireto increasethe proportion ticularrace,it is no longerpossible to argueaboutwhetherthe preferenceis a form of racialdiscrimination and it is more difficultto finda justification basedon educational or for that matter purposes, on anythingelse. Four principal reasonsare offered for attempting to achieveat least approximately racialrepresentation proportional
31This hypothetical case provides still another illustration of the point, mentioned earlier in discussing the issue of mootness, that the next case challenging racially preferential treatment to reach the Court may be different in some relevant respect from DeFunis. Nor is the hypothetical case an unrealistic one.

Most poor people are white. See U.S. DEP'T. OF COMMERCE, BUREAU OF THECENPOPULATION REPORTS-LOW-INCOME sus, 1970 CENSUSOF POPULATION-SUBJECT 53, 61 (1973). And most members of generally disadvantaged minorities are not OFTHECENSUS,U.S. CENSUSOF POPUBUREAU poor. See U.S. DEP'TOFCOMMERCE, LATION: 1970-DETAILED Tabs. 250, 347 (1973). One would, in fact, CHARACTERISTICS, expect the nonpoor members of minority groups to be overrepresented, relative to the poor of their groups, among law-school and other university applicants.

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in the legal profession: (1) making amends for past discrimination against the minority group; (2) putting the group where it would have been but for the handicaps imposed on its members by past discrimination; (3) improving the level of professional service received by the group; and (4) encouraging the aspirations of its members by the provision of suitable "role models." None of these four reasonswould be any more persuasiveto an objective observer than the sorts of argumentsthat could be offered for discriminating against racial minorities. 1. The members of the minority group who receive preferential treatment will often be those who have not been the victims of discrimination while the nonminority people excluded because of the preferences are unlikely to have perpetrated, or to have in any demonstrablesense benefited from,32 the discrimination.Indian reparations may be a distinct case, based on treaty (equivalent to contractual) obligations enforceable by the heirs of the original beneficiaries against the government; also distinguishable,though in my opinion only tenuously, is the use of racial quotas as part of a decree to remedy unlawful discrimination.33
32 One could spend many profitless hours discussing whether DeFunis is better or worse off as the result of the history of racial discrimination in this country. Perhaps he is better off because, but for a history of discrimination, there would be a larger pool of qualified black applicants for a law school education. Perhaps he is worse off because, but for the history of discrimination, fewer blacks (and members of other minorities) would be interested in becoming lawyers. Perhaps if there had never been discrimination against blacks, there would never have been slavery in the United States, and without slavery, it is possible, indeed probable, that the black population in the United States would be insignificant, real income of whites would be higher. in which event-perhaps-the 33 As for example in Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1 (1971). These decisions are difficult to justify because the people adversely affected by the decree are in general different from those who discriminated unlawfully. The remedy does not run against the wrongdoer. A more acceptable remedy would be damages. The costs of a decree imposing a racial quota in a labor market are borne primarily by the white workers (I distinguish the case where the source of the discrimination is the workers themselves or the union representing them) or, in the case of educational discrimination, by children bused to distant or inferior schools. The cost of a damage award, in contrast, would be borne primarily by the owners of the discriminating firm or the taxpayers of the discriminating school district. In discussions of black reparations, an analogy is frequently drawn to the payment of substantial reparations by Germany to the State of Israel in compensation for Nazi Germany's extermination of millions of European Jews. Among the distinguishing features is the fact that the cost of the German reparations was borne by the German taxpaying public as a whole, rather than

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2. Many groups are underrepresentedin various occupations for reasons of taste, opportunity, or aptitude unrelated to discrimination. There is no basis for a presumption that but for past discrimination, the four minorities favored by the University of Washington Law School would supply 20 percent of the nation's lawyers. 3.There is no evidence of which I am aware that a substantial number or proportion of minority-group law school graduates will seek in their professional careers to serve the special needs of their minority group rather than follow the normal patterns of professional advancement.34 4. The "role model" argumentis similarly ad hoc and conjectural. So long as a significant number of members of a minority group enter the legal profession and succeed in it (one of the Justices of the Supreme Court is black, after all), others will know that it is not closed to them. There is no basis for requiring proportional representation.35
by university students, schoolchildren, and members of the working class, who are being asked in this country to subsidize certain racial minorities. But the more important difference is in the degree of felt guilt. If the United States had recently exterminatedseveral millions of blacks, we might be willing to give several billion dollars to some African state that had been established as a refuge for persecuted blacks. Some people believe that the American treatment of the black has been comparable in its enormity to Hitler's treatment of the Jews; for them the analogy to German reparationsto Israel may be a compelling one. To evaluate such a belief will require more careful studies along the lines of FOGEL
& ENGERMAN, TIME ON THECROSS: OF AMERICAN NEGRO SLAVERY THE ECONOMICS

(1974). 34Those who argue that they will are careful to state the argument in a form that assures they will not be embarrassedby facts. Thus the amicus brief submitted by the Council on Legal Education Opportunity in the DeFunis case states (p. 24): "Since the greatest needs [for legal services] exist in the socioeconomically disadvantaged areas, a preference for students from those areas might be justified by the belief that such students would return to their communities after graduation. (Important values may be served even if they do not return-for example, the diversification of the bar and the creation of 'role models' for younger members of historically underrepresented groups. Thus there need be no proof of a commitment to return to the community of origin to justify such a preference.)" 35Anyone who was serious about the "role model" point would want the minorities to be represented in the professions in inverse proportion to their percentage of the population. Suppose Indigos were 10 percent of the population and Ultramarines only 1 percent. If the percentage of Indigo lawyers was raised to 10 to supply adequate role models for young Indigos, the percentage of Ultramarine lawyers should also be raised to 10, for only in that way will the Ultramarine role models be as visible to young Ultramarines. (If only 1 per-

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The reasons advanced for proportional representation are unimpressive. But more disturbing than the lack of solid intellectual foundations are the implications of the underrepresentation approach for the overall structure of society. The ultimate logic of underrepresentationis that the percentage of members of each minority racial and ethnic group in each desirable occupation, and in each level of achievement within the occupation, should be raised to equality with its percentage of the total population (either of the entire nation or, in some versions, of some region or local area). The proponents of proportional representation do not as yet urge adoption of the standardof perfect equality, but there seems to be no logical stopping point short of it within the structure of their argument. This is true despite their soothing assurancethat affirmative action is required only in a period of transition to a society in which, all vestiges of discriminationhaving been eliminated by affirmative action, society can resume a policy of color-blindness. If, as seems more likely than not, occupational preferences and abilities are not randomly distributed across all racial and ethnic groups, then governmental intervention in the labor markets (and in the educational process insofar as it affects occupational choice and success) will have to continue forever if proportional equality in the desirable occupations is to be secured. Consistently implemented, this sort of intervention would, by profoundly distorting the allocation of labor and by driving a wedge between individual merit and economic and professional success, greatly undermine the system of incentives on which a free society depends. A superficially attractive variant of the underrepresentationargument is that the demand for minority lawyers is greater at the present time than that for white lawyers, because of the special needs of minority-group members for legal representationand their preference for being represented by members of their own group. But to accept this argument would be once again to embrace the intellectual basis for the kinds of racial and ethnic discrimination that we do not like, for this argument would justify excluding an individual black, who had greater academic promise than some
cent of lawyers were Ultramarine,the young Ultramarine would rarely hear of or encounter an Ultramarine lawyer on the federal bench or in other positions of prominence.) Conversely, if the role-model needs of the Ultramarines are satisfied by proportional representation, the role-model needs of the Indigos will be equally well satisfied if 1 percent of the nation's lawyers are Indigo.

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white applicant,on the ground that prejudice,or other factors, would limit the contributionthat the black could make to the
profession.36
III. THE CONSTITUTIONAL ISSUE
A. PREVIOUS APPROACHES

Twenty-eight amicus curiae briefs were submitted to the Supreme Court in the DeFunis case, and most of them, rather than provide the Court with additional information not available in the record of the case, discuss points of constitutional doctrine. Yet the variety of constitutional argumentsin the multitude of briefs is not great. The briefs supporting DeFunis's position point to the undeniable fact that he was treated less favorably than he would have been if he had been a member of one of the four favored racial groups and argue from this fact that he was a victim of racial discrimination, an unconstitutional form of state action. The opposing briefs argue that racial discriminationis unlawful only when invidious and that DeFunis's treatment carried no implication that being a nonmember of one of the favored groups-i.e., being a whiteconnotes a despised or inferior status.
Similarly, one could argue that women should be treated less favorably with respect to admission to law school than men since their average lifetime earnings are much lower than those of male lawyers. See U.S. DEP'T OF COMMERCE,
BUREAU OF THE CENSUS, U.S. CENSUS OF POPULATION 1970-OCCUPATIONAL CHAR36

ACTERISTICS 280, 282 (1973). Such an argument would be completely unconvincing if places in the entering class of law school were simply auctioned to the highest bidders. Then the class would be composed of those who placed the highest value on a law school education, with value being influenced by earnings prospects. But when places are not rationed by price, it is entirely appropriate-in the absence of a private or public policy against discriminationto award places in accordance with the law school's judgment of the value that each applicant can derive from attending law school, a value that may be affected by racial or sexual discrimination against the applicant. An extreme version of this kind of argument appears in the amicus brief of the Council on Legal Education Opportunity, an organization that gives prelaw training to members of disadvantaged minorities. CLEO graduates, the brief states (pp. 23-24): "begin each year with a guaranteed stipend in addition to whatever scholarship, loan and work-study funds are provided by the school itself. Many other applicants bring to law school pressing financial needs with less hopeful prospects for their alleviation. An admissions committee might reasonably conclude that a minority student, thus assisted, was a better risk than a nonminority student less well provided for." In other words, it is proper to give a preference to an applicant who has more money, because he is less likely to be distracted from his studies by pressing financial needs than a poorer applicant.

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Neither argument is persuasive in the form expressed. Discrimination against whites, who constitute the vast majority of our population and who never before (in this country) have, as a group, been subjected to discrimination, is not patently the same phenomenon as the sorts of discrimination involved in previous equal-protection cases involving members of racial or ethnic minorities, or women. But neither is it tenable to argue that discrimination is bad only when the circumstances of its adoption or expression connote invidiousness, exploitation, or hostility, or seek to place a stamp of inferiority on the victims of the discrimination. Suppose that New York City adopted an ordinance (supported by the Jewish members of the City Council) limiting the percentage of Jews who could be teachers in the New York City public school system, and the ordinance was based on a finding that Jews are so able that no merit-based principle of selection could keep them from dominating the school system, but that the resulting concentration of Jews in the public schools had exacerbated racial tensions and had, indeed, promoted anti-Semitism. It is difficult to believe that such an ordinance would or should be upheld against a constitutional challenge, albeit one could argue (though not, in my opinion, persuasively) that the ordinance was not "invidious," since it was premised not on the inferiority of the Jews but indeed on the reverse, and even that the ordinance was in the Jews' best interest. A distinct argument for the constitutionality of discrimination in favor of minority groups has been made in a recent article by Professor Ely. He argues, along lines similar to those suggested earlier, that a policy of discrimination, favorable or unfavorable, might be adopted simply because the costs of individualized treatment were thought to exceed its benefits, but that when members of one racial group-such as the white majority of a state legislature-are appraising the costs and benefits of a proposed discrimination against another racial group the comparison is apt to be distorted by conscious or unconscious racial hostility.37 Hence, he argues, discrimination against a racial minority should be suspect under the Fourteenth Amendment, but discrimination in favor of a minority should not be since it does not involve any danger of majority exploitation of a minority. There are two fundamental objections to this argument. One37 Ely, note 17 supra, at 729, 732-33.

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the natureof the politicalprocess-I defer for that it misconceives the moment.The otheris that it providesa mode of justifyingdiscrimination ProfessorEly accepts the leagainstracialminorities. of of the costs againstthe memgitimacy comparing discriminating bers of a racialor ethnic minoritywith the benefitsfrom thereby He only wants avoidingthe need to make individualdistinctions. that the balance will be accuratelystruck. He is susassurance piciousthat the majoritywill fail to take adequateaccountof the the benefits, of the discriminatory costs,or will exaggerate measure, but this suspiciononly warrantsthat the reviewing court satisfy itself that the legislature has in fact assessed the costs and benefits of the discrimination the accurately. Suppose Post Officewere able to demonstrate convincinglythat blacks had, on average,inferior to whites for supervisory aptitudes positions,that the costs to the of were very great, and that postalsystem inadequate supervisors the costsof conductingthe inquiries to ascertain whether necessary an individualblack had the requisiteaptitudeswere also great in of discovering relationto the probability blacks.It would qualified seemto follow from Ely's analysis that the Post Officecould adopt a rule barringblacks from supervisorypositions.By condemning discriminations, only inefficient Ely reducesthe scope of the Equal ProtectionClauseto triviality,if I am correctin arguingthat most in contemporary discrimination society is caused by the costs of information ratherthan by irrationality, exploitation,or the suppression of competition.
B. TOWARD AN OBJECTIVE CONSTITUTIONAL PRINCIPLE

In orderto determinethe constitutionality of raciallypreferential admissions it is first to derivefrom the Equal policies, necessary for applying ProtectionClausesome rule, or principle,or standard formula(that no state may "deny to any person the constitutional within its jurisdiction the equalprotectionof the laws") to racial discrimination. There are two extremeapproaches to the task of cases. constructinga constitutionalrule to decide discrimination One is to be guidedcompletelyby the specificexpressions of intent on the part of the framersof the FourteenthAmendment.If the DeFunis scope of the EqualProtectionClausewere so determined, would have no leg to stand on. So bizarrewould discrimination of higher learninghave to institutions againstwhites in admission seemedto the framersof the FourteenthAmendmentthat we can

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be confident that they did not consciously seek to erect a constitutional barrieragainst such discrimination.But it is equally clear that the framers did not contemplate that the Amendment would compel equal treatment of blacks in public education.38The suggested approachto the interpretationof a constitutional provision is, in any event, unsound. The great costs of amending the Constitution counsel for a liberal interpretation of its provisions.39A new constitutional amendment should not be needed to prevent states from imposing on blacks forms of discriminationunknown to the framers of the Fourteenth Amendment. The opposite extreme would be to view the Equal Protection clause as authorizing the Justices of the Supreme Court to enact into constitutional doctrine their personal values with respect to the society's social questions, such as poverty, racial discrimination,and equality between the sexes. The arguments against the Court's assuming the role of superlegislaturehave been made so compellingly by others40that I shall not discuss this approach to constitutional interpretation. There remains a middle course, which is to derive from the specific purposes of the constitutional framers a rule that, while sufficiently general to avoid constant recourse to the amendment process, is sufficiently precise and objective to limit a judge's exercise of personal whim and preference. The rule I derive on this basis is that the distribution of benefits and costs by government on racial or ethnic grounds is impermissible. Even though it is frequently efficient to sort people by race or ethnic origin, because racial or ethnic identity may be a good proxy for functional classifications, efficiency is rejected as a basis for governmental action in this context. The government is required to incur the additional costs of determining the individual applicant's fitness to hold a particular job, or patronize a particular facility, or be admitted to one of its educational institutions. To permit discriminationto be justified on efficiency grounds, as would Professor Ely, would not only thwart the purpose of the Equal Protection Clause by allowing much, per38See Bickel, The Original Understanding and the Segregation Decision, 69
HARV. L. REV. 1 (1955).

39See Ehrlich & Posner, An Economic Analysis of Legal Rulemaking, 3 J.

LEG. STUDIES 257, 280 (1974).

40See in particular the neglected contribution of Bork, Neutral Principles and Some First Amendment Problems, 47 IND.L. J. 1 (1971).

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to continue,but it would give the judges hapsmost, discrimination on measures the power to pick and choose among discriminatory the basisof personalvalues,for the weighing of the relevantcosts and benefitswould of necessitybe largelysubjective. It is possibleto object that the principlewhich I proposeis itself becauseit does not explainwhy only race subjectiveand arbitrary, and ethnic origin, and not all immutable or involuntarycharacterare subject isticswhich areused as proxiesfor othercharacteristics, to the principle.What is the differencebetween a rule forbidding women to be fighterpilots,premised on a belief that most women are unfit for such an occupation,and a rule forbiddingJews to be fighter pilots, premisedon a similarbelief?41Alienage, nonresidence,height,homosexuality, youth, poverty,andlow IQ are some other exampleof immutable or involuntarycharacteristics used as criteria for governmentalregulations.42 On what objective basis can these characteristics be distinguished from genealogy?There aretwo groundsfor distinction. The firstis one of necessity:if the in terms of all involuntary constitutional were defined principle the thata constitutional it would violate characteristics, requirement bind the principle judges.Since no one could arguethat no involshould ever be used as a criterionof public untary characteristic the it carte regulation, principlewould give the judgesinterpreting blancheto pick and choose among groups definedin accordance with one of the involuntarycharacteristics. Second, the grouping of peopleby an ancestral charactetistic is surely not the samephenomenonas, say, groupingby sex or age. A rule forbiddingblacks to work in mines, one forbiddingwomen to work in mines, and one forbidding childrento work in minesmay all be discriminatory,
41There is a question whether Jews are properly treated as a racial-ethnic (i.e., genealogical) type of group, or as a religious group. If the latter is so, there seems no need to invoke the Equal Protection Clause, since the First Amendment, which protects the free exercise of religion from abridgment by state as well as federal government (the Due Process Clause of the Fourteenth Amendment has been interpreted as applying the prohibition of the First Amendment to the states), would prevent a state from discriminating against the Jews on account of their religion. Much anti-Semitic legislation, however, notably that of Nazi Germany, has treated the Jews as a racial or ethnic group. A Jew under Germany's anti-Semitic laws was someone with a Jewish ancestor; so a Christian who had converted from Judaism (or whose parents or grandparents had converted) was still classified as a Jew. 42IQ is not valued in itself, but as a predictor (only partially accurate) of academic or some other sort of intellectual performance.

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but one must strain to regard them as identical, in the sense that if one is invalid, so, obviously are the others. In contrast, it would be very difficult to distinguish a rule forbidding Chicanos, or Jews, or American Indians, or Italian-Americansto work in mines from a rule forbidding blacks to work in mines.43If the last is invalid, so, clearly, are the others. It remainsto consider whether an exception to the rule forbidding discriminationon racial or ethnic grounds can be recognized where the discriminationcan be said to be in favor of a racial or ethnic minority, and the race discriminatedagainst is the white race. The exception is inadmissible,because it requires the court not only to consider whether there is discriminationbut to decide whether the discrimination harms or hurts a particular racial group, and to weigh the competing claims of different racial groups, and the additional inquiries rob the principle of its precision and objectivity. The Court had no good evidence before it in the Brown case44that segregated education in fact harmed blacks. The questions critical to the point were not even asked: Would blacks have fared better under a system of no public education (assuming that whites would prefer such a system to integrated public education)? Under a system where students were sorted by IQ? By family income? In later cases the Court stopped asking whether segregation actually hurt the blacks. (Today, of course, some blacks favor segregation.) The antidiscriminationprinciple is not only more objective, but more compelling, when it is divorced from empirical inquiries into the effects of particularforms of discriminationon the affected groups. The necessary inquiries are intractable and would leave the field open to slippery conjecture. As suggested earlier, a plausible argument could be made that various forms of discriminationnominally against Jews might actually advance the interests of the Jews as a whole, for example by reducing their prominence and visibility in certain areas where the conspicuousness of the Jews may stimulate anti-Semitism. Similar arguments could be made for various forms of conceivably well-intentioned discriminationagainst blacks (such
43The congressional debates preceding the enactment of the Fourteenth Amendment indicate an awareness that its protections could not be denied to other racial-ethnic groups besides the blacks, e.g., the Chinese. See references indexed in AVINS, THE RECONSTRUCTION AMENDMENTS' DEBATES 746 (1967). 44 Brown v. Board of Education, 347 U.S. 483 (1954).

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or limitationson the migrationof as "benign"housing quotas,45 blacks from southern to northern states). The Supreme Court but not because they are substanwould reject such arguments, it acceptswhen it upholds less the tially compellingthan arguments about action.The arguments the constitutionality of governmental of in favor of discrimination the propercharacterization nominally Is the position of the racial minoritieshave a similarelusiveness. that they cannot be harmed whites in this country so unassailable Or is the impactof such quotaslikely to be conby racialquotas?46 and perhapsvulnerable, centratedon particular, subgroupswithin the white majority?Do racialquotasactually help the minorities intendedto be benefited,or harm them by impairingtheir selfesteemor legitimating stereotypical thinkingaboutrace?Are whites entitledto claim minoritystatuswhen they are a minoritywithin the political subdivisionthat enacted the measurediscriminating would blackslack whites?If so, then by parityof reasoning against against standingto complain about an ordinancediscriminating them enactedby Newark, New Jersey, or Washington,D.C., or eligible othercitiesin which blacksarea majorityof the population If are do not a constitutional to vote? these litigableissues,we have a that the but directive judgesupholdthose forms principle merely which accord with their perof racial and ethnic discrimination sonalvalues. I contend,in short,thatthe properconstitutional principleis not, no "invidious" but no use of racial racialor ethnic discrimination, of government or ethniccriteriato determine benethe distribution about fits and burdens.An appropriate this question principleis on whatmightbe termedthe "explosive whetherracial lawspremised mixture" rationale arewithin its scope.Supposea prisondecidedto its inmatesby race, not as a methodof preferenceor exsegregate clusion but simply to reduce violence stemmingfrom the racial hostilitiesof both black and white prisoners.If every prisoneris
content with the separation,the issue of its constitutionality is moot.

But if a blackprisoner, for whatever say, would preferintegration, a victim of based then he is the exclusion,and in reason, racially
45 See Ackerman, Integration for Subsidy Housing and the Question of Racial Occupancy Controls, 26 STANF.L. REV. 245 (1974), advocating this position. 46Suppose each black were given two votes. Would that go too far? Why? This arresting example is from Kaplan, note 16 supra, at 382.

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terms of principle is in no different position from that of the black parent who wants his children to be able to attend an integrated school. To ask whether racial exclusion may not have overriding benefits for both races in particular circumstances is to place the antidiscriminationprinciple at the mercy of the vagaries of empirical conjecture and thereby free the judge to enact his personal values into constitutional doctrine. The prison example suggests, however, that no principle can be completely unbending-can be applied wholly without regard to cost.47If a race riot breaks out in a prison, the warden must be permitted to segregate the races in order to minimize bloodshed. But to say that the antidiscriminationprinciple needs a safety valve48is not the same thing as saying that race is merely a "suspect" classification the presumption against which can be overcome by the tissue of conjectures offered in the briefs in DeFunis.
C. SOCIAL PEACE AND CONSTITUTIONAL PRINCIPLE

The Realpolitik argument against DeFunis is that preferential treatment of blacks and other militant minorities is the price the white majority must pay for avoiding the sort of unrest and violence of which the race riots of the 1960s were arguably but the portents. More narrowly, preferential treatment in university admissions may be the price of avoiding racial, and perhaps other types of student, unrest such as was experienced by many universities and colleges in that period. Although university administrators publicly justify their preferential admissions policies in terms of increasing diversity, rectifying historical injustices, and the like, in private they often will admit that appeasing student militancy was the dominant factor in the adoption of the policies. Is fear of a minority's potential for imposing costs on the majority through violence or other means an appropriate,if unarticulated, justification for discrimination in favor of that minority? The answer depends in part on one's view of the nature of the political
47 That extreme view is effectively criticized in Reder, Citizen Rights and the Cost of Law Enforcement, 3 J. LEG. STUDIES 435 (1974). 48And therefore that the Court had to consider the government's arguments for subjecting the Japanese residents of California to curfews and concentration camps during World War II, albeit it may have given the arguments too much weight. See Hirabayashi v. United States, 321 U.S. 81 (1943); Korematsu v. United States, 323 U.S. 214 (1944).

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process.The Court'sexpressedview, perhapsdictatedby its dependenceon the goodwill of the legislativebranch,is that the political processis one of honestlyattempting to promoteefficiency, or justice,or some other equallygeneralconceptionof the public good. Under this "publicinterest"theory, yielding to extortionis an inadequate for legislativeor other govpresumably justification ernmental action.49 The public-interest theory, however, is under as lackinga good anaand attack effective, increasing, increasingly lytical basisand contraryto actualexperiencewith governmental policies and programs.Many public policies are better explained as the outcomeof a pure power struggle-clothedin a rhetoricof public interest that is a mere figleaf-among narrow interest or pressuregroups. The ability of such groups to obtain legislation derivesfromtheirmoney,votes,cohesiveness, abilityto makecredible threatsof violence or other disorderif their demandsare not to the abstractmeritof met, and other factorsall totally unrelated the policy at issue.Not only is the legislationthey obtaindesigned to enrichthem at the expenseof the rest of the community,but typically the lossesare greaterthan the gainsbecauseof the costs wealth.50 in allocativeinefficiencyof measures for redistributing of the politicalprocess-not of its If this is a correctdescription central and perhaps to of an important be but sure, outcome, every if tendency-then very many, perhapsmost, statutes, appraised would be found to lack any true basis carefullyand realistically, in the publicinterest.Indeed,a vast partof the output of the govin ernmentalprocesswould be seen to consist of discrimination, wealth (in one form or anthe sense of an effort to redistribute other) from one group in the communityto another,founded on
49 Cf. Cooper v. Aaron, 358 U.S. 1, 21-22 (1958). But cf. NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 41-43 (1937).
50 The literature of the "public interest" and "interest group" theories of legislation and government regulation is reviewed in Posner, Theories of Economic Regulation, 5 BELLJ. ECON.& MANAGEMENT SCI. 335 (1974), Some examples of the literature on the role of interest groups in the legislative process are AND PUBLIC OPINION INTERESTS POLITICAL PROCESS: TRUMAN, THE GOVERNMENT (1951); Stigler, The Theory of Economic Regulation, 2 BELLJ. ECON.& MANAGEMENT Scl. 3 (1971), Stigler, Director's Law of Public Income Redistribution, 13 J. LAW & ECON. 1 (1970); Jordan, Producer Protection, Prior Market Structure and the Effects of Government Regulation, 15 J. LAW & ECON. 151 (1972); 1877-1916 (1965); Kitch, Isaacson & Kasper, AND REGULATION RAILROADS KOLKO, The Regulation of Taxicabs in Chicago, 14 J. LAW & ECON. 285 (1971).

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the superior ability of one group to manipulatethe political process rather than on any principle of justice or efficiency.51Yet it would be odd, indeed, to condemn as unconstitutional the most characteristic product of a democratic (perhaps of any) political system. The new realism about the political process calls for a reexamination of the role of a constitutional court. If it is true that we have a government of powers and interests ratherthan of general-welfare maximization, and if this pattern is an inevitable, and perhaps ultimately a desirable, feature of our society (the impartial pursuit of the public interest might incite a revolution by those disadvantaged in that pursuit), then it would be a mistake to require that legislaview of the governmental process is very damaging to Professor Ely's to attempt distinguish between suspect and nonsuspect classifications on the basis of whether the majority group is discriminating against itself or against a minority. See Ely, note 17 supra, at 733. Much or most legislation, racial and otherwise, is an attempt by one group in the community to advance itself at the expense of another, so that if Ely were consistent in applying his principle he would have to conclude that most legislation was suspect and should be subjected to close scrutiny by the courts-which it could not withstand. Ely does suggest that there is a difference between racial and other sorts of legislative discrimination in that a white legislator is unlikely to be fully conscious of his prejudice against blacks whereas no such blind spot would prevent him from seeing that a law fixing minimum prices for milk would transfer wealth from milk consumers to producers while at the same time reducing the efficiency of the agricultural market. Id. at 733, n.44. But this attempted distinction only demonstrates that Ely does not fully grasp the implications of the new realism about the political process. He assumes that a legislator's scruples have an important influence on legislation, so that a person's blindness about his own prejudices might indeed affect the legislative process. If the new realism is correct, scruples are unimportant-the milk producers get minimum prices because they have political muscle, not because they convince the legislators that raising the price of milk serves the public interest. In any event, Ely offers no reason for thinking that the kind of person who dislikes blacks without knowing it is not also likely to think he is voting his conscience when he supports milk price supports in order to improve his reelection chances. Another questionable element in Ely's implicit theory of the political process is the assumption, implausible and nowhere examined by him, that legislators are principals rather than agents. When he mentions "the group that controls the decision making process," id. at 735, he apparently means not the racial majority of the electorate but the racial majority of the legislature. Evidently, a legislature consisting of the black servants of white plantation owners would be free to enact legislation discriminatingagainst blacks. Ely seems unaware that identifying "the group that controls the decision making process" involves plumbing the murkiest depths of political theory. Who controls the admissions process at the University of Washington Law School? The admissionscommittee? The law school faculty? The university administration?The university trustees? The state legislature? The governor of Washington? HEW? See also note 57 infra.
51 This

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tion, to withstand a challenge based on alleged arbitrarinessor discrimination, be reasonably related to some general social goal. The real "justification"for most legislation is simply that it is the product of the constitutionally created political process of our society. This justification would seem to provide a sufficient basis for rejecting any general constitutional challenge to legislation, for example the minimum wage, as inefficient or inequitable (the minimum wage is both).52 It would seem to provide a decisive objection to Professor Gunther's recent proposal that the Equal Protection Clause be interpreted as requiring, in the case of economically discriminatory legislation such as the statute upheld in Williamson v. Lee Optical Co.53 forbidding opticians to replace eyeglass frames without a prescription, that the means chosen to carry out the avowed legislative purpose be reasonably related to that purpose.54 If, as seems almost certainly the case, the true purpose of the statute in Lee Optical was to protect the optometrists from competition (the avowed purpose was to promote public health), the statute would be unconstitutional; but the identical law would be valid if the state declared its true, unseemly purpose.55But what is to be gained by using the Equal Protection Clause to rub the noses of state legislators in the realities of the interest-group politics out of which legislation arises? If the purpose is to alter the characteristic process and product of a democratic political system, it is a purpose both unlikely to be achieved and unreasonableto attribute to the framers of the Fourteenth Amendment. While realism about the political process provides a compelling justification for declining to subject legislation in general to a constitutional requirement that it be in the public interest,56it provides
52 By increasing the cost of labor the minimumwage reduces the demand for it. The resulting unemployment effects are concentrated among marginal workers, in particular black teenagers. These effects are well documented. See, e.g., PETERSON & STEWART, EMPLOYMENT EFFECTS OF MINIMUM WAGE RATES (1969); Kosters &

Welch, The Effects of Minimum Wages on the Distribution of Changes in AggreREV.323 (1972). gate Employment, 62 AM. ECON. 53 348 U.S. 483 (1955). 54See Gunther, The Supreme Court 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86
HARV.L. REV. 1, 20-21, 23 (1972).
55 See id. at 45-46. 56There may be extreme cases of discriminatory state action, however, not involving racial or ethnic criteria but so palpably inconsistent with "the equal pro-

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no justification at all for upholding legislation that infringes upon a clear and definite constitutional goal, such as the outlawry of governmental racial discrimination.If a constitutional right means anything, it means that infringement is not permissiblemerely because desired by the political organs. Thus, it is never a legitimate ground for refusing to apply a constitutional principle that the group that would benefit from the nonapplication (in DeFunis the members of certain minority groups) has enough political or extrapolitical muscle to make life uncomfortable for the public officials who do not yield to its demands. The implicit threat of certain minority group members to make trouble, either in the university or in the larger society, if their demands for discriminationare not met is no more entitled to weight in a constitutional analysis than the threat of the majority to make trouble if their demands for discrimination are not met. Indeed, the very distinction between "minority" and "majority" disappearsin a careful analysis of the nature of the political process.57 The essence of a realistic analysis of that process is
tection of the laws" as to be unconstitutional, such as forbidding left-handed people to obtain drivers'licenses in order to reduce automobile air pollution. 57Which is which in the following recent news story that appearedin the Wall Street Journal,29 July 1974,p. 3, cols. 4-5? "Temple University has paid an out-of-court settlement of $5,000to an historian who claims he was denied a faculty position because he is white. "The case is believed to be the first in which such a payment was made. It was one of the more than 100 reverse-discriminationcomplaints filed by the National American Jewish Committee with the Department of Health, Education and Welfare over the past 10 years. "The complaint was brought by Martin Goldman, a 34-year-old lecturer in black history at Clark University in Massachusetts,who applied for a position in 1972at Temple's Institute of Pan-African Studies. "He said that after applying for a job, the institute's director, Odeyo Ayaga, telephoned him and asked him to come to Philadelphia for an interview. He said Mr. Ayaga told him that he was 'the most qualified applicant they had.' "At the end of the telephone conversation,Mr. Goldman said he told Mr. Ayaga that he was white, and Mr. Ayaga immediately withdrew the job offer. "Mr. Goldman filed his complaint after a second conversationwith a representative of the school, a secretary at Temple's black studies program, who he said told him the job was for blacks only. "Mr. Goldman, a native of Philadelphia and an alumnus of Temple, said he singled out that university in his complaint because it was 'the only place stupid enough to openly admit the reasonsthey refused to consider me for a job.' . . . "Mr. Goldman said that from 1971to 1973he sent out job resumes to more than 100 universities seeking teachers of black history, a field in which he holds a master'sdegree, and that he was never offered a job. "'I would say that any white kid who wants to study black history is an utter

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recognitionthat policy is procuredby, and on behalf of, minoriand dairy farmersand ties-by interestgroups,such as optometrists retail druggistsand owners of televisionstations,that are much smallerthan the population-rather than by some undifferentiated majority.The segregationof the armedforces in World War II was not the resultof majoritypreference; it was a concessionto a of Southerners.58 white minoritycomposedmainly
D. THE ARGUMENT OF EXPEDIENCY

One last "argument" for countenancing is treatment preferential its It is well for law that known, simply prevalence. example, schools offer larger scholarships to outstandingblack applicants thanto equallyqualified, and no more affluent, whites, in orderto attractas manyblack studentsas possiblewho are not significantly less well qualified than their white students.This is an exampleof racialdiscrimination within the meaningof the concept proposed here. Preferential treatmentfor AmericanIndiansis a deeply embeddedfeatureof our publicpolicy andis contraryto the principle in light of other principroposedhere though perhapsjustifiable as that of ples-such honoringtreaty (i.e., contractual)obligations. treatmentis becoming widespreadin many preferential Racially contexts. But all that this amounts to sayingis that the employment form of racialdiscrimination in this article,only one asdiscussed pect of which was involvedin the DeFuniscase itself, has become
quite prevalent in the few years in which it has been practiced59(I
fool. It is a field that has been closed off for political and social reasons to white scholars,'Mr. Goldman said. "Since its inception in 1969,Temple's Institute of Pan African Studies has never employed a white faculty member, according to a university spokesman. Except for one Oriental, the staff is all black." How would Professor Ely classify this type of discrimination-as a majority exploiting a minority, viewing the Institute of Pan African Studies as the discriminator, or as a majority exploiting itself, viewing Temple University as the discriminator? 58 The "social peace" argument for discriminationin favor of a militant minorof made on behalf of white segregationists, a regional minority, course, was, ity in opposing the desegregation of the public schools in the South. See Cooper v.
Aaron, 358 U.S. 1 (1958).
59 One reason why upholding DeFunis's claim would have had so great an impact is that the concept of state action has been enlarged to embrace so much private conduct. The answer is not to distort the substantivedoctrine of the Equal Protection Clause but to adopt a functional definition of state action. See note 27 supra.

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again except the Indian situation as a special case). That is not a good reason for affirmingits constitutionality, once it is agreed that the Realpolitik argumentsfor legislation, while in general admissible and appropriate,are impermissibleto justify infringement of a well defined and specific constitutional principle such as that forbidding racial discrimination. Furthermore,the impact of eliminating racial preference is easily exaggerated.The preferred groups could be redefined as the underprivileged, the deprived, etc.-classifications not based on race or ethnic origin. The constitutional objection to preferential treatment would thereby be removed, without substantialimpairment of the purposes of such treatment. The principal reason for using racial or ethnic criteria is, after all, convenience, and this implies that vindication of DeFunis's claim would have created, at worst, some inconvenience for those who seek to use reverse racial and ethnic discriminationto increase the welfare of disadvantagedindividuals in our society.