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Racial preferences for blacks generate ambivalence in those who care about racial equality and also believe that individuals should be judged "on their own merits." This ambivalence is reflected in divergent "equal protection" values, the value of eliminating barriers to equality imposed on minority groups and that of distributing the burdens and benefits of social life without reference to arbitrary distinctions. It is hardly surprising, therefore, that after Marco DeFunis, Jr. challenged the constitutionality of racial preferences for admission to a state law school, the Supreme Court's resolution of the issue was awaited with intense interest and some trepidation. For the time being, the Supreme Court has avoided grappling with the substantive questions, but they give little promise of "going away."

This Article concerns the judicial scrutiny that is appropriate when state educational institutions adopt in their admissions policies racial preferences for applicants who are members of minority groups – that is, when they decide to expand minority enrollment even at the expense of non-minority applicants who are better qualified by ordinary criteria. I start with consideration of the various standards used by the Court in reviewing claims of unconstitutional classification and reach preliminary conclusions about the proper tests for "benign" racial classifications. I then measure against these the various purposes that may be asserted as justifications for such classifications, illustrating more specifically why I think a particular level of review is called for and indicating my view of the proper outcome of the constitutional questions raised by DeFunis. My conclusions are: that an intermediate level of scrutiny is needed, one more demanding than the "rationality" test employed for most economic and social classifications but less demanding than the "most rigid scrutiny" test applicable to racial classifications that burden minority group members; that as to many suggested purposes, the Court should review with great care the necessity for the classification chosen to accomplish a purpose; that racial preferences for minority groups can be sustained as permissible ways to redress injustices and to promote genuine social equality, but that other possible purposes are inadequate bases for a racial preference as broad as that involved in DeFunis.


Civil Rights and Discrimination | Education Law | Law | Law and Race


This article originally appeared in 75 Colum. L. Rev. 559 (1975). Reprinted by permission.