Controversy continues unabated over the question left unresolved by DeFunis v. Odegaard: whether in its admissions process a state law school may accord preferential treatment to certain racial and ethnic minorities. In the pages of two journals published by the University of Chicago, Professors John Hart Ely and Richard Posner have established diametrically opposed positions in the debate. Their contributions are of special interest because each undertakes to answer the question within the framework of a theory concerning the proper distribution of authority between the judiciary and the other institutions of government. Neither position, in my judgment, adequately confronts the problem of the judicial role in a democracy. The value choices Posner would have the courts eschew are inescapable if the equal protection clause is to be employed as a measure of legislative power. Precisely because such choices are essential whenever the clause is used to limit legislative power, however, appropriate sensitivity to the values served by democratic decision-making requires courts to defer to legislative judgments unless they clearly transgress constitutional tradition. Nothing in American constitutional tradition requires courts to deny legislatures the power to authorize preferential admissions policies for racial and ethnic minorities. The validity of such policies depends only upon a judgment that they serve the public welfare. The arguments that can be advanced to support such a judgment are more than ample to sustain such an exercise of legislative power. The precise question posed by DeFunis and like cases, however, is not whether preferential admissions policies are within the competence of a legislature, but whether they are valid when adopted by a university without explicit legislative sanction. There is, I shall argue, a significant difference between these questions, and because of that difference existing racial preference programs draw no support from Ely's analysis. Although there is good reason to sustain preferential policies in any event, the grounds for such a judgment are far less compelling than they would be if the policies had received explicit legislative approval.
Sandalow, Terrance. "Racial Preferences in Higher Education: Political Responsibility and the Judicial Role." U. Chi. L. Rev. 42 (1975): 653-703.