R, Regents of the University of California v. Bakke,
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
Regents of the University of California v. Bakke,
438 U.S. 265 (1978), argued 12 Oct. 1977, decided 28 June 1978 by vote of 5 to 4; Powell for the Court, Brennan, White, Marshall, and Blackmun concurring in part and dissenting in part. Allan Bakke wanted to be a physician. The University of California Medical School at Davis sought greater racial and ethnic diversity in its student body. The conflict between these two goals produced the first major constitutional test of *affirmative action. It also posed an intractable conundrum: how to overcome the tension between an individual’s claim to equal treatment by a state, and that state’s responsibility to foster some degree of equality among its citizens.
Bakke was one of 2,664 applicants for one hundred entering positions at the Davis medical school in 1972. Eighty-four slots were filled through the regular admissions program; sixteen were filled through a special admissions program—a distinct (p. 831) and separate process established in 1970 to address the faculty’s concern over the paucity of African-American, Asian, Latino, and Native American students. Grade point average and standard test score requirements were much less stringent than for students admitted under the regular program.
Rejected twice by the university, Bakke filed a lawsuit alleging that the Davis program violated Title VI of the *Civil Rights Act of 1964, forbidding racial or ethnic preferences in programs supported by federal funds, and that the university’s practice of setting aside positions for minorities denied him equal protection of the law under the *Fourteenth Amendment.
The university agreed that racial classifications are disfavored because racial characteristics are generally irrelevant to permissible state objectives. However, the meritocratic promise of nondiscrimination was offset by the state’s equally compelling concern for the victims of past and continuing racial injustice. The university also stressed the program’s practical benefits: enriched medical education through a diverse student body, successful role models for minority youth, and improved medical services to minority communities.
Both the state trial court and state supreme court ruled that racially exclusionary preferences constituted a quota and that such quotas, absent a finding of prior discrimination by the university itself, were a denial of equal protection.
The U.S. Supreme Court held that a university may consider racial criteria as part of a competitive admissions process so long as “fixed quotas” were not used. But the holding masked a sharply divided Court with six separate opinions. Four justices (John Paul *Stevens, Warren *Burger, Potter *Stewart, and William *Rehnquist) preferred to address the statutory rather than the constitutional issue. The “plain meaning” of Title VI and its “broad prohibition against the exclusion of any individual” (pp. 412–413) on racial grounds from a publicly funded program were sufficient grounds, in their judgment, to order Bakke admitted.
A second group (William J. *Brennan, Thurgood *Marshall, Byron *White, and Harry *Blackmun) saw no difference between the commands of the *Equal Protection Clause and Title VI. Absent a stigmatizing intent or effect, one “drawn on the presumption that one race is inferior to another” or one that places “the weight of government behind racial hatred and separation” (pp. 357–358), there was no reason to trigger the strictest equal protection test. However, the “mere rationality” test deployed in cases not affecting fundamental rights or suspect classifications was too lenient. Instead, Brennan opted for the middle test of heightened scrutiny. So long as the state can demonstrate an important purpose and the means do not unduly burden “those least well represented in the political process” (p. 361), race-conscious remedies to help members of groups that had suffered racially motivated injuries were constitutional (see strict scrutiny).
Justice Lewis *Powell cast the deciding vote, joining with Steven’s plurality on the illegality of the racial quota and in ordering Bakke admitted, while agreeing with Brennan’s *plurality on the permissibility of racial considerations in admissions. The decisive factor for Powell was the exclusionary nature of the Davis program. Since Bakke had been “totally foreclosed” (p. 305) from competing for the sixteen special positions, he had been denied equal protection. Racial quotas are allowed only when there was a past constitutional or legal violation identified by a properly authorized governmental body. Powell did find justification for less exclusionary affirmative action programs in the *First Amendment’s guarantee of academic freedom. In a truly competitive process, racial considerations could be taken into account as part of the university’s interest in promoting a “diverse student body” (p. 312).
Affirmative action continues to be a central controversy in America’s political and legal life. Bakke nibbled at the question, settling only the narrower issue of racial quotas in admissions to state supported schools and leaving later cases to test the propriety of affirmative action in other realms. Voters in California and Washington banned state and local affirmative action programs during the late 1990s. Texas and Florida adopted race-neutral admission programs to their public universities. And the Fifth Circuit Court of Appeals in Hopwood v. Texas (1996) held that diversity was not a compelling state interest.
In 2003 the Supreme Court reaffirmed the central tenets of Justice Powell’s opinion. The Supreme Court upheld a flexible, race-based admission program emphasizing diversity used by the University of Michigan’s law school (*Grutter v. Bollinger) while striking down a quota-based admission program used by Michigan’s undergraduate school (*Gratz v. Bollinger). Race-conscious admissions programs are on firmer legal ground than they have been in a generation.
Timothy J. O’Neill, Bakke and the Politics of Equality (1985). Peter Schuck, Diversity in America (2003).
Timothy J. O’Neill