“Defunis v. Odegaard: Another Kind of ‘Jewish Problem'” by Sharae Wheeler

Reference: Seattle Civil Rights and Labor History Project

In 1971, Marco Defunis, a twenty-two-year-old Sephardic Jew and native of Seattle, Washington, brought suit against the University of Washington Law School (UWLS) over its refusal to admit him.[1] An investigation by Defunis’ attorneys into the UWLS’ admission record revealed that the University employed “preferential admissions policies” for minorities, also known as affirmative action policies. Defunis claimed that these policies created a situation in which unqualified minorities were admitted above him, therefore making affirmative action discriminatory against non-minorities. [2] By the time Defunis v Odegaard reached the United States Supreme Court, the issue of the use of affirmative action in university admissions had been catapulted into national debate, with minorities and non-minorities arguing over the validity, necessity, and constitutionality of such policies. In the midst of this debate, the Jewish community found itself in an incredibly tenuous position. Jews, who for decades had been subjected to quotas limiting their participation in education, were now proportionally over-represented in both undergraduate and graduate studies in colleges and universities throughout the nation, thus creating the fear on the part of some that Jews’ hard-won gains might be negatively affected by affirmative action.[3] However, supporting Defunis pitted the Jewish community against other minorities, especially African Americans, who were strong supporters of affirmative action, and threatened the longstanding alliance between Jews and African Americans on issues of civil rights and social justice.

While there is a plethora of literature addressing the historical context, implementation, and legality of affirmative action, historical analysis of Defunis v Odegaard, the first legal challenge to affirmative action policies in university admissions, is surprisingly rare. Some sources, including Ralph Rossum’s Reverse Discrimination: The Constitutional Case, only briefly mention Defunis v. Odegaard. Others, such as Kul Rai and John Critzer’s Affirmative Action and the Universityand J. Edward Kellough’s Understanding Affirmative Action, completely ignore the existence of the case.[4] The dearth of coverage regarding the historical significance of Defunis v Odegaard may be because many writers, such as Adam Sindler, believe that the well-known 1978 affirmative action challenge involving a white applicant to the University of California, Davis Medical School, Regents of the University of California v Bakke, was a much more “significant” and ground-breaking case in the history of affirmative action.[5] Sindler explains in his book, Bakke, Defunis and Minority Admissions, that “much attention was shifted from Defunis to Bakke” because the Bakke case established important “constitutional guidelines” regarding the use of affirmative action in university admissions.[6] Privileging the Bakke case over Defunis, however, has limited our understanding of the ethnic divisions over affirmative actionDefunis v Odegaard not only created conflict between Jews and African Americans over university admissions, but also divided the Jewish community against itself, with remnants of the controversy still lingering today.

The scholarly works that discuss Defunis v Odegaard and the issue of affirmative action leave much to be desired and little is known about how the Jewish community’s involvement in the debate over affirmative action in the 1970s and 1980s affected the relationship between the Jewish community and the black community. In her article, “How Affirmative Action Fractured the Black-Jewish Alliance,” historian Cheryl Greenberg broaches the topic of Black-Jewish relations in the context of affirmative action cases. Greenberg, however, only takes a brief look at Defunis v Odegaard and while she acknowledges that some controversy stemmed from the Jewish community’s decision to support Defunis, she fails to fully interrogate the issue .[7] This results in an incomplete picture of the tumult that occurred both within the Jewish community and between Jews and the African American community.[8]This paper will delve deeper into the issues surrounding the Defunis case and examine the true degree of discord created by Marco Defunis’ lawsuit and the decision of many in the Jewish community to become actively involved in the case.

Before Defunis v Odegaard the Jewish and Black communities had shared a common concern over civil rights, in many cases working together as a united front against injustice on issues such as segregationrestrictive housing covenants, and discrimination in employment.[9] The case of Defunis v Odegaard, however, created a much different situation in which most major Jewish organizations sided with Defunis and thus found themselves at odds with nearly every national African American advocacy organization.[10] The fact that Jews such as Marco Defunis were not considered “disadvantaged” minorities who were entitled to preference under affirmative action, combined with the fact that African Americans were firmly in support of such policies, made the Defunis case appear, to many Jews, as a double-edged sword. A response in favor of Defunis would, for the first time, publicly place Jewish groups and African American groups on the opposite sides of a civil rights issue while a response in support of affirmative action could possibly impact the Jewish community in a negative manner by inhibiting some qualified Jews from securing positions in higher education and employment.[11] Further complicating the issue, many Jews who spoke publicly about the case found parallels between the “goals of representation” supported by affirmative action advocates, which set numerical expectations for the admission of different ethnic groups, and the historical quota systems which had limited Jewish involvement in academia in the past. The Defunis case, therefore, served as a pivotal moment for the Jewish community; Jews were not only forced to resolve tensions which existed internally, but also to decide between group self-interest and the alliances shared with the African American community. The conflict over the case had long-lasting consequences, both internally and externally, for the Jewish community.

Affirmative action, a term coined by John F. Kennedy in 1961, was a policy established by Title VII of the Civil Rights Act of 1964.[12]This Act, resulting from the civil rights efforts of the 1950s and 1960s, was drafted in response to multiple pleas from minorities, including African Americans, to create a “level playing field” in education, employment, and many other facets of society.[13] In an attempt to rectify the “past wrongs” that minorities had been subjected to, Title VII, as Kul Rai and John Critzer explain, “required that if the court were to find an intentional unlawful employment practice, it could order affirmative action of a remedial nature, such as reinstatement or intentional hiring of the injured group.”[14] While the 1964 Civil Rights Act outlined the strategy of the United States government’s “commitment to equality” in regards to fair practices in employment, it was not until President Lyndon Johnson issued Executive Order 11246 in September of 1965 that colleges and universities were also included in the government’s order for affirmative action.[15] This order barred all “state and local governments, private businesses, colleges and universities, and non-profit institutions” from “discriminating on the basis of race, color, religion, or national origin,” and encouraged these organizations to make an effort to recruit people “from all groups.”[16] President Johnson, claiming it was his quest to achieve “equality as a result and not just legal equality,” took this order even further by establishing “a system of detailed bureaucratic rules” including “federal contract-compliance offices,” which monitored the activities of these organizations to ensure they were actually providing equal opportunities to minorities.[17] By the late 1960s, affirmative action had become commonplace in university admissions policies, with many universities striving to achieve higher enrollment percentages of “historically disadvantaged minorities.” However, it was not until Defunis v Odegaard that these policies were challenged both in the legal arena and in the court of public opinion.

The case began in the spring of 1970 when Marco Defunis, a soon-to-be graduate of the University of Washington, received notice that he had not been accepted to the UW Law School.[18] Defunis enrolled in a University of Washington Graduate program for the 1970-1971 school year and re-applied to the UWLS, once again receiving a rejection letter.[19] Claiming that “many candidates whose qualifications and credentials [were] much below” his own were admitted, and charging that many of these “unqualified candidates [were] not taxpayers or residents of the State of Washington,” Defunis then filed suit against the UWLS in the Superior Court of Washington, King County.[20] Seeking damages for the “Law School’s unjust discrimination in favor of nonresidents and nontaxpayers, and students who [did] not have the qualifications and credentials possessed by [Defunis],” Defunis asked the courts to deem UWLS admissions policies unconstitutional and to force the UWLS to not only admit him, but also to provide monetary reparations.[21] The case became much more complicated when an investigation by Defunis’ council into UWLS admission records revealed that not only had the university “admitted 37 minority candidates whose credentials were below” Defunis’, but also that the UWLS had used “different” processes and criteria when admitting minority candidates in order to “provide academic opportunities to disadvantaged groups.”[22] In light of these findings, the Superior Court found that, in their use of affirmative action policies, the UWLS had “discriminated against” Defunis and had “not accorded to him equal protection of the law guaranteed by the Fourteenth Amendment to the United States Constitution.”[23]

The UWLS, unhappy with the court’s decision, filed an appeal to the Washington State Supreme Court in 1972. In these proceedings many of the same arguments were made; however, the Washington State Supreme Court overruled the Superior Court decision, stating that the UWLS’ decision to “provide minorities with added opportunities in no way denied Marco Defunis equal protection” under the law.[24] The case did not end there, for in 1973 Defunis was granted a hearing by the United States Supreme Court. At this time, many groups, from children’s advocacy groups to labor unions, became involved by expressing their opinions in the form of amicus briefs that showed support for either Defunis or the UWLS.[25] For African Americans and other minorities, it was clear that the affirmative action policies implemented by the UWLS were “creating progress for the disadvantaged minority” and every national African American organization filed briefs supporting the law school’s “commitment to rectifying past wrongs and providing future opportunities.”[26] For the Jewish community, however, the decision regarding whether, and to whom, to show their support was not as straight-forward.

The tensions the Jewish community felt regarding the case can be seen in the amicus briefs filed by the nationally representative organizations of the Jewish community.  Most Jewish organizations sided with Defunis in challenging affirmative action. The Anti-Defamation League of B’nai B’rith (ADL), the American Jewish Committee, the Jewish Rights Council (JRC), the American Jewish Congress, and several other Jewish organizations, all filed briefs supporting Defunis’ claims that affirmative action policies were in violation of the Fourteenth Amendment.[27]

copyright (c) Sharae Wheeler 2008
HSTAA 498 Winter 2007

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