The landmark 1978 Supreme Court decision in *Regents of the University of California v. Bakke* did not emerge in a vacuum. It was preceded by a complex legal and social landscape concerning affirmative action, particularly in higher education. The case built upon earlier attempts to address historical discrimination and the evolving understanding of equality in American society. Before Bakke, the Supreme Court had already touched upon the issue, and many
institutions had begun implementing special admissions programs to increase minority representation, setting the stage for the legal challenges that would follow.
The DeFunis Case: A Missed Opportunity for Precedent
One of the earliest cases taken by the Supreme Court on the constitutionality of affirmative action in higher education was *DeFunis v. Odegaard* in 1974. Marco DeFunis, a white man, had been denied admission twice to the University of Washington School of Law. The law school operated an affirmative-action program, and DeFunis had received a higher rating from admissions staff than some admitted minority candidates. A Washington state trial court ordered DeFunis admitted, and he attended law school while the case was pending. The Washington Supreme Court reversed this decision, but the order was stayed, allowing DeFunis to remain in school.
When the U.S. Supreme Court granted review, the case was briefed and argued. However, by the time the Court considered the matter, DeFunis was only months away from graduation. The law school stated in its briefs that, even if it won, it would not dismiss him. After further briefing on the question of mootness, the Supreme Court dismissed the case, 5–4, holding that since DeFunis had almost completed his studies, there was no longer a live case or controversy to decide. Justice William Brennan, in an opinion joined by the other three members of the minority, criticized the court for "sidestepping" the issues, predicting that they "must inevitably return to the federal courts and ultimately again to this court." This prediction proved accurate with the Bakke case just a few years later.
The Rise of Special Admissions Programs
Despite court decrees integrating public universities, selective colleges, graduate programs, and the professions they led to, remained predominantly white. Many African Americans, having attended inferior schools, were often ill-prepared to compete effectively in the standard admissions process. This situation was deemed unsatisfactory by many activists in the late 1960s, who argued that given the history of discrimination and poverty faced by African Americans, some preference should be extended to minorities. This perspective gained traction as a commonly held liberal position, leading numerous public and private universities to initiate affirmative action programs.
Among these institutions was the UC Davis School of Medicine, founded in 1968, which initially had an all-white inaugural class. Concerned by this lack of diversity, the faculty established a special admissions program "to compensate victims of unjust societal discrimination." The application form included a question asking if the student wished to be considered disadvantaged. If so, these candidates were screened by a special committee, with more than half its members from minority groups. Initially, eight out of 50 seats in the entering class were set aside for minorities. When the class size doubled in 1971, 16 seats were designated to be filled by candidates recommended by this special committee. While nominally open to white applicants, no white individual was admitted through this program, which was unusual in its explicit reservation of a specific number of seats for candidates identified through this process.
The University's Admission Practices Under Scrutiny
The UC Davis School of Medicine's special admissions program, while aiming to address historical inequities, operated with a clear numerical target for minority students. This approach, which effectively functioned as a quota, became a point of contention. For instance, in 1974, the special admissions committee summarily rejected all white students who applied under the program, even though 272 white individuals had applied between 1971 and 1974 without success. Only a handful of minority students—one black student and six Latinos—were admitted under the regular admissions program during that period, though a significant number of Asian students gained entry through regular admissions.
Further complicating the university's admissions practices were allegations of "dean's picks." According to a 1976 *Los Angeles Times* article, the dean of the medical school sometimes intervened on behalf of the children of the university's "special friends" to improve their chances. These interventions, occurring about five times a year, even benefited individuals who had not filed an application, such as the son of an influential state assemblyman. University of California President David S. Saxon ordered an end to these special picks in 1976. While it was impossible to definitively say if these picks directly prevented Allan Bakke's admission, an attorney who filed an amicus curiae brief on behalf of the National Urban League suggested that the practice made the university reluctant to fully disclose its admission practices at trial, potentially harming its case. This backdrop of specific, and at times opaque, admissions procedures contributed to the legal challenge that Bakke ultimately mounted.
