In the case of DeFunis v. Odegaard, Marco DeFunis Jr., a white applicant to the University of Washington Law School, sued after being denied admission while minority applicants with lower test scores were accepted due to an affirmative action program. He argued that this violated his Fourteenth Amendment rights under Equal Protection Clause. The Supreme Court initially agreed to hear the case but ultimately dismissed it as moot because by the time they began deliberations, DeFunis was about to graduate from law school (he had been allowed provisional admittance pending outcome). This dismissal prevented any substantive ruling on affirmative action policies in higher education at that time.

In the dissenting opinion for DEFUNIS et al. v. ODEGAARD et al., Justice Douglas argued that the case was not moot and should be decided on its merits, contrary to the majority's decision to dismiss it as moot because Marco DeFunis was set to graduate soon from law school. He believed that racial discrimination issues raised by DeFunis were substantial and recurring in nature, thus meriting a review by the court even if his personal situation had changed during litigation process. Furthermore, he contended that dismissing such cases due to changes in individual circumstances would allow institutions practicing discriminatory policies to evade judicial scrutiny simply through delaying tactics until affected individuals' situations change or their claims become irrelevant personally.