The Making of Reverse Discrimination

How DeFunis and Bakke Bleached Racism from Equal Protection

Ellen Messer-Davidow

In The Making of Reverse Discrimination Ellen Messer-Davidow offers a fresh and incisive analysis of the legal-judicial discourse of DeFunis v. Odegaard (1974) and Regents of the University of California v. Bakke (1978), the first two cases challenging race-conscious admissions to professional schools to reach the US Supreme Court. While the voluminous literature on DeFunis and Bakke has focused on the Supreme Court’s far from definitive answers to important constitutional questions, Messer-Davidow closely examines each case from beginning to end. She investigates the social surrounds where the cases incubated, their tours through the courts, and their aftereffects. Her analysis shows how lawyers and judges used the mechanisms of language and law to narrow the conflict to a single white male applicant and a single white-dominated university program to dismiss the historical, sociological, statistical, and experiential facts of “systemic racism” and thereby to assemble “reverse discrimination” as a new object of legal analysis.

In exposing the discursive mechanisms that marginalized the interests of applicants and communities of color, Messer-Davidow demonstrates that the construction of facts, the reasoning by precedent, and the invocation of constitutional principles deserve more scrutiny than they have received in the scholarly literature. Although facts, precedents, and principles are said to bring stability and equity to the law, Messer-Davidow argues that the white-centered narratives of DeFunis and Bakke not only bleached the color from equal protection but also served as the template for the dozens of anti–affirmative action projects—lawsuits, voter referenda, executive orders—that conservative movement organizations mounted in the following years.

“After 2020’s summer of Floyd demonstrations, the subject of racial justice is solidly back on the national agenda. This fine exercise in legal detective work reveals with chilling forensic clarity how the 1974 DeFunis and 1978 Bakke cases were manipulated to consolidate the bogus concept of ‘reverse discrimination,’ thereby eviscerating equal protection for people of color and setting back for decades the struggle against systemic racial injustice in the United States. We can only hope that Ellen Messer-Davidow’s brilliant exposé will contribute to reinstituting the betrayed imperative of dismantling ongoing white supremacy and one day achieving a racially egalitarian society.”

—Charles W. Mills, distinguished professor of philosophy, Graduate Center, City University of New York

“The history of affirmative action efforts to redress racial imbalances in college admissions has been chronicled before, but never with the massive detail and theoretical sophistication Ellen Messer-Davidow deploys in this important new book. The issue of the law and racial justice continues to plague us, and Messer-Davidow’s analysis of cases from the 1960s and 1970s is entirely relevant to our situation today.”

—Stanley Fish, Floersheimer Distinguished Visiting Professor of Law, Benjamin N. Cardozo School of Law, Yeshiva University

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About the Author

Ellen Messer-Davidow is professor of English, University of Minnesota, Twin Cities, and an affiliate faculty member in the Departments of Gender, Women, and Sexuality Studies; Cultural Studies and Comparative Literature; and American Studies. She is the author of Disciplining Feminism: From Social Activism to Academic Discourse and coeditor of Knowledges: Historical and Critical Studies in Disciplinarity.