Applying Justice Douglas's standard. The only time I met William O. Douglas was in a dentist's office in New York. He had come in out of a fierce rainstorm looking like Spencer Tracy in "Bad Day at Black Rock." He was angry at a majority of his brethren, for they had just decided not to decide a case on the merits. They had declared the case moot. Douglas, brooding, said to me, "They can't evade this issue much longer. It's too important to duck."

At the center of the case was Marco DeFunis, a white student who was initially denied admission to the University of Washington Law School although his average was higher than some of the minority applicants who did get in.

DeFunis sued, and a state trial court ruled that the law school had violated his right to equal protection under the laws. He was admitted in the fall of 1971. That decision was reversed by the Washington Supreme Court, but by the time the case was argued on appeal before the United State Supreme Court, DeFunis was already in his last quarter. So, in 1974, a majority of the Supreme Court declared the case moot.

In his dissent, Douglas first focused on DeFunis's constitutional claims. It was clear, said Douglas, that two sets of criteria had been used by the law school, and one of them was based on race. This policy, he emphasized, could not be reconciled with the equal protection clause of the 14th Amendment, which was intended to eliminate all official race discrimination by the state.

The key to diversifying the student body, Douglas wrote, "is consideration of such problems in a racially neutral way."

That did not mean going entirely by LSAT scores and previous grades. There would be no violation of the Equal Protection Clause if a law school were to evaluate "an applicant's prior achievements in light of the barriers he had to overcome. A black applicant who pulled himself out of the ghetto into a junior college may thereby demonstrate a level of motivation, perseverance and ability that would lead a fair-minded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard.

"That applicant would be offered admission not because he is black, but because as an individual he has shown he has the potential, while the Harvard man may have taken less advantage of the vastly superior opportunities offered him."

Moreover, "such a policy would not be limited to blacks, or Chicanos or Filipinos or American Indians {the groups then given preferential treatment by the University of Washington Law School}... . A poor Appalachian white, or a second generation Chinese in San Francisco or some other American whose lineage is so diverse as to defy ethnic labels may demonstrate similar potential and thus be accorded favorable consideration by the committee."

With this approach, decisions would be made on the basis of individual attributes, "rather than according a preference solely on the basis of race."

And differences in cultural backgrounds can also be taken into account as part of the mix of individual attributes of each applicant. "The Indian who walks to the beat of Chief Seattle of the Muckleshoot Tribe in Washington," Douglas took pleasure in observing, "has a different culture from examiners at law schools."

Also figuring in the admissions decision, Douglas said, is the consideration of "an individual's prior achievements in light of the racial discrimination that barred his way -- as a factor in attempting to assess his true potential for a successful legal career."

Michael L. Williams, assistant secretary for civil rights in the Education Department, might well have cited Justice Douglas's reasoning in DeFunis v. Odegaard when he announced a new policy, which, among other things, ruled that private colleges receiving federal aid cannot establish their own "race-exclusive" scholarships. And public colleges cannot earmark public funds for such scholarships.

Those parts of the policy remain in place despite the heavy editing by the White House. The colleges and universities will, however, have four years to sort all this out.

"We can get minorities into schools," Williams said, "without saying that the only way you can get in is that there are five seats allocated for you." He speaks of looking at "economic disadvantage; whether students have overcome large obstacles; etc."

That is right out of Justice Douglas in DeFunis, and no one ever called him a right-wing ideologue.