Vol. 32 No. 03 (March 2022) pp. 28-31 THE MAKING OF REVERSE DISCRIMINATION: HOW DEFUNIS AND BAKKE BLEACHED RACISM FROM EQUAL PROTECTION, by Ellen Messer-Davidow. Lawrence: University Press of Kansas, 2021. pp.392. Paper $29.95. ISBN: 978-0-7006-3221-3.
Reviewed by Lauren Foley. Department of Political Science. Western Michigan University. Email: lauren.foley@wmich.edu.
Early university affirmative action cases brought before the Supreme Court paint a confusing picture: one white male plaintiff and one predominantly white university defendant arguing about civil rights. How were minority voices excluded from litigation and the resulting opinions? How did the facts of systemic racism become the analytical lens of reverse racism? “Why did court opinions [seek] to detach the factual filaments of minority exclusion from the nodes of equality principles?” (p. 3). In THE MAKING OF REVERSE DISCRIMINATION, Ellen Messer-Davidow examines DEFUNIS V. ODEGAARD (1974) and REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE (1978) to argue that the development of colorblind legal-judicial discourse “bleached racism from Equal Protection.” Participants constructed this white-centered narrative by choosing language that slanted or omitted facts, narrowing the story through time and action framing, and using specious reasoning to link facts to the dispute.
Scholars of affirmative action, constitutional development, and racial politics should read this book for the richly detailed empirical work Messer-Davidow brings to these early affirmative action in higher education cases. Looking far beyond traditional case materials, she excavates the facts that were neglected in the adversarial process, including wider systemic discrimination in the relevant cities, state educational pipeline discrimination, and bias in standardized testing that case amici writers fought unsuccessfully to have included in the DEFUNIS and BAKKE trial records and judicial opinions. As a result, she demonstrates that DEFUNIS and BAKKE articulated constitutional principles based on flawed and misleading factual records. Messer-Davidow accomplishes this feat through archival work on thousands of pages of contextual materials, particularly those neglected by the actual trial participants, and extensive interviews with advocates involved in these cases. She brings analytical frames and tools of discourse analysis to legal scholarship that will help future scholars of the law find the same language practices in other cases, likely with similarly misleading results.
THE MAKING OF REVERSE DISCRIMINATION lays bare the slanted, obscured, and omitted facts of these affirmative action cases. In the DEFUNIS case, Messer-Davidow brings to light facts that were omitted from the trial record and ignored on appeal. The first set of facts reveals the systemic and educational pipeline racism in Seattle at the time of the alleged admissions discrimination. The trial transcript relied upon abstracting language to hide these facts, referring to “cultural conditions” that created barriers to access, an evasive, euphemistic way to refer to poverty and systemic racism (p. 66). Second, Messer-Davidow exposes the influence campaign of the DeFunis family, which leveraged connections to the University of Washington Board of Regents in an attempt to access special treatment and preference in favor of DeFunis’s application. The lawsuit came to target alleged special treatment for racial minorities only after the DeFunis family’s efforts at obtaining special treatment from the Regents failed. Third, the facts show that the case was racialized: whereas the initial complaint was made against UW Law for exercising out-of-state applicant preference, it shifted to focus on racial minority preferences. Messer-Davidow unpacks this racialization as a “complex discursive process of imprinting racial grammars on social phenomena” (p. 79).
To future scholars writing about race and constitutional development, the book offers a valuable warning to beware of falling into faulty framing of these cases. Alan Bakke was never going to get into the University of California, Davis Medical School, and the situation had nothing to do with race. The colorblind narrative of BAKKE is that the plaintiff was “the victim of a racial quota because he was excluded from applying for the sixteen special admissions places and thus could compete for only the remaining eighty-four places” (p. 197). Yet, Messer-Davidow painstakingly reconstructs the U.C.-Davis admissions process far beyond the sparse discovery and trial record to account for the seven different admissions tracks into the Medical School, none of which relied upon race and in all of which Alan Bakke failed to be competitive. His benchmark application score placed him in only the ninety-second percentile of applicants, so he was not academically outstanding. Compounding his fate, he did not fare well against the higher academic standard used for late-arriving and older applicants. Additionally, an admissions boost was given to applicants who submitted updated and stronger materials (not Bakke), or had a spouse already accepted (not Bakke), or had experienced an educational disadvantage (not Bakke), or were interested in serving an underserved community as a physician (not Bakke), or curried the Dean’s favor with a prominent and well-connected family (not Bakke). The latter criterion became a full-blown admissions scandal in investigative journalism: the Medical School’s Dean reserved up to six out of one hundred spots for wealthy, well-connected applicants of his choice. However, the matter never played a role in the trial materials. In short, Bakke’s application was not competitive: “the number of places for which Bakke could compete was probably less than twenty” (p. 197). Even his lawyer seemed to acknowledge Bakke’s slim chances of admission on his own merits, offering to drop the case if the University could just make room and “find another cadaver” for him (p. 187). In sum, the legal-judicial discourse of BAKKE and DEFUNIS is a funhouse mirror distortion of reality, reflecting back warped factual records instead of the actual circumstances of these cases.
Scholars of law and politics must pay attention to the damaging effects of the ways discourse is produced and reproduced. The white-centered narrative that bleached Equal Protection removed minority voices from the litigation process, protected a colorblind view of the Constitution that ignored systemic racism, and interpreted constitutional principles as inapplicable to group rights. Misrepresented and omitted facts slanted the case and the resulting equality principles away from minority students. In Messer-Davidow’s meticulous excavation of the circumstances of the BAKKE and DEFUNIS cases, we learn how words function as “pliable tools for constru(ct)ing facts and law” (p. 56). For example, language affects discourse in law review articles both for and against affirmative action, discourse that is then used to distance constitutional principles and precedents. Examples include using disembodied, passive prose and pejorative word choices, singularizing white students’ shortcomings while exceptionalizing Black accomplishments (p. 46), and perpetuating a narrative of “white normativity” (p. 47).
Messer-Davidow analyzes how narrow time and action frames minimize racism and push minority voices out of affirmative action cases. All narratives use frames that select and deselect facts. In DEFUNIS, the “reverse discrimination” frame won out over the “remedial action” frame, with the effect of excluding racism. Both the plaintiff and defendant “narrowed their focus to the 1971 admissions process to exclude inconvenient facts about racism” in contrast to the amici briefs representing pro-minority voices that “texture[d] their briefs with historical, social, and legal facts about the cumulative racism that excluded minority students from or disadvantaged them in law school admissions” (p. 111).
Lastly, Messer-Davidow highlights how the absence of social science evidence on educational bias and systemic racism skewed the results in the DEFUNIS and BAKKE affirmative action cases. Without these facts, we miss the wider context of the applications of racial minorities to these universities; these applicants were not on the same footing as the plaintiff applicants. The Douglass opinion in DEFUNIS sharpens this point. Messer-Davidow argues that the Douglass dissent, long maligned as incoherent by scholars, highlights the missing social context of the case. The dissent argued for a retrial to bring in the missing facts showing racial bias behind the LSAT, and asserted that reliance upon this test by law schools cannot be reconciled with the purpose of the Fourteenth Amendment. Through “social and textual practices,” facts about systemic racism and educational pipeline discrimination were deliberately excluded from the BAKKE trial record and ignored on appeal. Whereas social sciences briefs had been persuasive in cases like MULLER V. OREGON (1908) and BROWN V. BOARD OF EDUCATION (1954), the California Supreme Court invoked the record principle to ignore compelling social facts documented by the amici, such as the discriminatory impact of the MCAT, grade point averages, and educational pipeline discrimination in California that would have negatively impacted Black and Latino graduate school applicants. “The truncated discovery, the waived trial, and the appellate court’s failure to remand,” Messer-Davidow writes, “were social practices that prevented minority witnesses and intervenors” from participating (p. 234). “The invocation of the record principle to reject the pro-minority amici facts, the faulty analogizing of factually dissimilar cases, and the ascent to abstract principles that . . . cloaked the white plaintiff in equal protection were textual practices” that excluded pro-minority voices (p. 234).
The choices attorneys make in arguments and judges make in writing opinions tell stories that influence the truth of the story itself. People make choices, for instance, about how to write about who was harmed, who is worthy, and what our constitutional principles protect. The early affirmative action cases “bleach[ed] the real-world consequences of systemic racism” from Equal Protection (p. 267). Colorblind advocates used the tools of language to “install a new form of color-blind racism that diminished the opportunities available to already disadvantaged people of color” (p. 294). These tools included choices around the “mechanisms of language—narrative framing, grammar and syntactic structures, figurative devices, and lexical choices—to racialize facts, empty precedents of their social contexts, enunciate abstract principles, and bleach racism from equal protection” (p. 295). THE MAKING OF REVERSE DISCRIMINATION should become a top cite for scholars in law and politics who wish to discuss how the conservative legal movement has triumphed in writing color-blind principles into law, how this discourse is produced, and why “blind” or “neutral to race” is anything but. As Messer-Davidow makes clear, how we write about the Constitution changes its meaning with the effect of narrowing or expanding protections in future controversies.
Of course, the legal-judicial discourse choices in BAKKE and DEFUNIS have influence far beyond the respective medical and law school aspirations of Alan and Marco. Four justices in BAKKE were willing to acknowledge that past racial prejudice and discrimination were at stake in the central constitutional question. Twenty-five years later, the Supreme Court upheld the use of race in university admissions policies in GRUTTER V. BOLLINGER and endorsed it most recently in FISHER V. THE UNIVERSITY OF TEXAS AT AUSTIN, but the number of justices willing to look at the wider context of discrimination and racial bias has dwindled. Affirmative action in university admissions returns to the Supreme Court docket next term, and if the Court finds these programs unconstitutional, THE MAKING OF REVERSE DISCRIMINATION will go a long way toward telling us why.
CASES:
BROWN V. BOARD OF EDUCATION, 347 U.S. 483 (1954).
DEFUNIS V. ODEGAARD, 416 U.S. 312 (1974).
FISHER V. THE UNIVERSITY OF TEXAS AT AUSTIN, 579 U.S. 365 (2016).
GRUTTER V. BOLLINGER, 539 U.S. 306 (2003).
MULLER V. OREGON, 208 U.S. 412 (1908).
REGENTS OF THE UNIVERSITY OF CALIFORNIA V. BAKKE, 438 U.S. 265 (1978).
© Copyright 2021 by author Lauren Foley.
