The U.S. Supreme Court defined racial quotas in preferential admissions programs as unconstitutional yet also declared that an applicant’s race could be a consideration.
During the 1950’s and 1960’s, the United States made substantial progress in civil rights, aided by decisions of the U.S. Supreme Court that found state-sponsored segregation of the races to be unconstitutional. With its decision in Brown v. Board of Education of Topeka, Kansas(1954),
Supporters of affirmative action contended that the removal of legal barriers was inadequate to ensure equality of the races. For example, President Lyndon B. Johnson
The University of California at Davis Medical School (UCDMS) enrolled its first class in 1968. The class comprised fifty students, three of whom were Asian American and none of whom were African American, Latino, or American Indian. Almost immediately, the school decided to create a special admissions program that would provide seats in each class for disadvantaged minorities. In 1970, eight seats were reserved for special admissions. In 1971, the total class size of the school doubled to one hundred, and the number of special admissions slots was doubled to sixteen. Applying for admission became a two-track process, with applicants indicating whether they wanted to be considered as disadvantaged minorities. Persons found to qualify for special admissions competed against one another for the sixteen special seats while all other applicants competed for the remaining seats. Applicants for special admissions did not have to meet the same requirements in terms of grade point averages and standardized test scores as those competing in the general admissions process. Between 1968 and 1973, the year Allan Paul Bakke first applied to UCDMS, the number of minority students enrolled in the medical school rose from three to thirty-one.
Bakke was employed as an engineer with the National Aeronautics and Space Administration (NASA) in California when he decided to apply to medical school in the fall of 1972. He had come to the decision that his true calling was the practice of medicine. He applied to twelve medical schools that year and was rejected by all of them. Several of the schools cited Bakke’s age, thirty-three, as the cause of their rejection. Bakke had an admissions interview at UCDMS and received high marks in the ranking of candidates for admission, but because his application was late, he missed by a few points the cutoff score for the few seats left at that time. Bakke visited the school after he was rejected and talked with an admissions officer who encouraged him to apply again the next year and to consider challenging the special admissions program. Bakke believed that he would have been admitted to the school in 1973 if sixteen places had not been set aside for disadvantaged minorities.
Bakke applied for the 1974 class at UCDMS and was again rejected. This time it appeared that his views on the special admissions program, which he had discussed with an administrator during his interview, were a factor in his rejection. Bakke decided to sue the medical school, arguing that the special admissions program violated his constitutional equal protection rights because the sixteen special admissions seats were allocated purely on the basis of race. Bakke’s case brought to the limelight a new equal protection question: Can members of the white majority be the victims of racial discrimination? Bakke contended that affirmative action programs like the one at UCDMS created “reverse discrimination”
Allan Paul Bakke attends his first day of medical school at the University of California at Davis on September 25, 1978, after winning his reverse discrimination lawsuit.
UCDMS argued that it had compelling reasons for creating the racial classification. It was seeking to remedy past societal discrimination that had kept minorities from becoming doctors. Additionally, the school asserted that on completion of their medical training, minority doctors would be likely to return to minority communities and provide much-needed medical care. Finally, the school contended that ethnic diversity was an important asset to the educational environment and that the special admissions program helped ensure a more diverse student body.
The question of reverse discrimination had been before the courts only once before. In 1971, Marco DeFunis
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The Superior Court of California agreed with Bakke’s position. It found that the special admissions program constituted a racial quota in violation of the constitutions of the nation and the state and the Civil Rights Act of 1964. The court said that UCDMS could not take race into account in its admissions decisions. It refused, however, to order Bakke’s admission to the school, finding no evidence that Bakke would have been admitted if no affirmative action program had been in place. Both Bakke and the medical school appealed the decision, and, in 1976, the Supreme Court of California ruled in Bakke’s favor, holding that the special admissions program was a violation of the equal protection clause of the Fourteenth Amendment. The court further ordered UCDMS to admit Bakke. The medical school appealed this decision to the U.S. Supreme Court.
At the end of its 1977-1978 term, the Supreme Court announced its decision in the case of Regents of the University of California v. Bakke. Four of the nine justices, led by John Paul Stevens, believed the UCDMS program to be a violation of Title VI of the Civil Rights Act of 1964,
Justice Lewis F. Powell, Jr., wrote the decision that, because it allowed each of the other justices to join in at least part, became the ruling of the Court. Powell found that the UCDMS special admissions program was indeed unconstitutional. He argued that the equal protection clause prohibited policies based solely on racial factors unless there was some compelling state interest that could override the very high barrier to such classification. In examining the justifications offered by the medical school, he found only the academic interest in student-body diversity convincing. He rejected the argument that past societal discrimination justified affirmative action. To find that reverse discrimination had occurred, the Court required a showing that the agency practicing it (in this case, UCDMS) had in the past discriminated. As the school had opened in 1968 and begun its special admissions program in 1970, no such history of discrimination existed.
Powell also rejected the argument that the program was justified because it served the medical needs of disadvantaged minority communities. The medical school could provide no evidence that special admissions doctors were any more likely than others to practice medicine in these communities after they completed their education. Powell held that the program could not stand. In this part of his opinion, he was joined by the four justices in the Stevens coalition, creating a majority to strike down the special admissions program and compel Bakke’s admission.
Powell did not rule out all affirmative action programs as violations of equal protection. In the medical school’s third justification, the promotion of student-body diversity, he found some legitimacy because of the traditional freedom granted to academic institutions to set their educational goals. Powell said that the desire for diversity justified some consideration of race as a factor in admissions decisions. The flaw in the UCDMS program was that race appeared to be the only factor shaping decisions for the sixteen seats. In this part of his decision, Powell was joined by the four justices in the Brennan coalition, thus creating a majority for the position that race may be considered as one factor among others in admissions decisions.
The landmark Bakke case provided something for both opponents and supporters of affirmative action. While it accepted the idea of reverse discrimination that Bakke had asserted and vindicated his rights, it refused to reject the concept of affirmative action altogether. For college admissions officers, the Court’s decision in the case provided a road map for how they could go about pursuing affirmative action in admissions decisions without violating the equal protection clause. For policy makers in general, it warned against the use of numerical quotas for accomplishing affirmative action ends.
The division on the Court over the Bakke decision heralded an extended battle in the courts over which kinds of affirmative action programs would be found to be constitutional and which would not. In the years after Bakke, the courts struggled repeatedly, and contentiously, with questions regarding affirmative action in employment. Bakke raised more questions than it answered and brought to the forefront the breakdown of consensus on civil rights questions in the United States. When the issues of civil rights had been about the dismantling of legal barriers to equality, a broad consensus had existed about the justice of this course of action. It was generally agreed that the Constitution does not permit a legally segregated society. After the landmark desegregation decisions of the 1950’s and 1960’s, the questions became more complicated and the moral imperatives less clear. What kind of equality does the Constitution require? Once the legal requirements of segregation are removed, does society have any further affirmative obligation to remedy the wrongs of the past? To what extent can individuals who are not responsible for past discrimination be made to bear the burden for the past?
For Allan Bakke, the impact of the Supreme Court’s decision was clear-cut. He enrolled in the University of California at Davis Medical School in the fall of 1978, and in the spring of 1982 he graduated to a loud round of applause from the audience. For thousands of minority students across the United States, the Bakke decision provided new opportunities in higher education. The Court’s ruling permitting race to be considered as one factor ensured that special admissions programs would continue. What can never be calculated is whether more or fewer of these students were provided educational opportunities because of the decision.
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citation-type="booksimple" xlink:type="simple">Ball, Howard. The Bakke Case: Race, Education, and Affirmative Action. Lawrence: University Press of Kansas, 2000. A history of the case’s litigation, introduced by a history of affirmative action in higher education and followed by chapters discussing the dynamics of Supreme Court decision making, affirmative action policy in the 1990’s, and the legacy of Bakke as of the year 2000. Includes bibliographic essay and index. -
citation-type="booksimple" xlink:type="simple">Dreyfuss, Joel, and Charles Lawrence III. The Bakke Case: The Politics of Inequality. New York: Harcourt Brace Jovanovich, 1979. Written by journalists in a readable narrative style that is sympathetic to arguments for affirmative action. Suggests that the focus of debate on qualifications obscured the underlying economic issues in affirmative action and signaled a fundamental change in race relations in the United States. -
citation-type="booksimple" xlink:type="simple">Eastland, Terry, and William J. Bennett. Counting by Race: Equality from the Founding Fathers to “Bakke” and “Weber.” New York: Basic Books, 1979. A historical summary with an emphasis on the change from the goal of individual equality of opportunity to that of “numerical parity” for groups. The authors are very critical of the majority opinion in the Weber case. -
citation-type="booksimple" xlink:type="simple">Greenwalt, Kent. Discrimination and Reverse Discrimination. New York: Alfred A. Knopf, 1982. About two-thirds of this convenient little book is composed of Supreme Court opinions and other primary material, with an excellent introduction that defends racial preference. This is designed primarily as a text for college courses. -
citation-type="booksimple" xlink:type="simple">Gross, Barry. Discrimination in Reverse: Is Turnabout Fair Play? New York: New York University Press, 1978. Addresses the philosophical and ethical issues of preferential treatment, with limited material on the legal questions. Argues that such policies are ethically wrong and contrary to the goal of equal justice. -
citation-type="booksimple" xlink:type="simple">McPherson, Stephanie Sammartino. The Bakke Case and the Affirmative Action Debate: Debating Supreme Court Decisions. Berkeley Heights, N.J.: Enslow, 2005. Explanation of the case and of affirmative action in general is aimed at young adult readers. Includes chapter notes and questions for discussion. -
citation-type="booksimple" xlink:type="simple">Nieman, Donald G. Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present. New York: Oxford University Press, 1991. Readable historical essay on African Americans and U.S. law includes a good chapter at the end dealing with the debate about affirmative action. -
citation-type="booksimple" xlink:type="simple">Schwartz, Bernard. Behind Bakke: Affirmative Action and the Supreme Court. New York: New York University Press, 1988. Provides behind-the-scenes insights into the decision-making process of the Court in this landmark case. -
citation-type="booksimple" xlink:type="simple">Sindler, Allan P. Bakke, DeFunis, and Minority Admissions: The Quest for Equal Opportunity. New York: Longman, 1978. Focuses on the issue of how to promote equal opportunity without engaging in reverse discrimination. Provides a useful detailed look at the underlying issues and court histories of the Bakke and DeFunis cases. -
citation-type="booksimple" xlink:type="simple">Urofsky, Melvin. A Conflict of Rights: The Supreme Court and Affirmative Action. New York: Charles Scribner’s Sons, 1991. About a fifth of this excellent book deals with the history of affirmative action, and the rest is devoted to the 1987 case of Johnson v. Transportation Agency. Presents a balanced and sympathetic evaluation of the opposing viewpoints on the controversial topic. -
citation-type="booksimple" xlink:type="simple">Wilkinson, J. Harvie, III. From Brown to Bakke: The Supreme Court and School Integration, 1954-1978. New York: Oxford University Press, 1979. Chronicles the role of the Supreme Court in the desegregation of education and argues that public support for Court decisions breaks down with the move from principle to the imposition of such remedies as busing and affirmative action. -
citation-type="booksimple" xlink:type="simple">Zelnick, Robert. “The Beginning of the End for Bakke.” Hoover Digest, no. 2 (2002): 101-109. Considers the Bakke case in the light of developments at the University of Michigan and their implications for affirmative action in higher education.
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