Handing down its anxiously awaited opinion in the Bakke “reverse discrimination” case, a sharply divided Supreme Court last week ruled that:
Although race may be considered as one factor in university admissions procedures, the University of California’s medical school at Davis must admit Allan Bakke because its special admissions program had illegally excluded him from consideration for 16 seats in two of its freshman classes.
Crucial Vote by Powell
“The fatal flaw in [Davis’s] preferential program is its disregard of individual rights as guaranteed by the 14th Amendment,” said Justice Lewis F. Powell, who cast the crucial swing vote in the decision announced last week.
The denial to Mr. Bakke “of this right to individualized consideration without regard to his race is the principal evil” of the Davis program, said Mr. Powell. Under the program, 16 seats in each entering medical-school class had been set aside for minority-group applicants.
Justice Powell thus joined four members of the Court in upholding an order by the California Supreme Court that Mr. Bakke, a white engineer, be admitted to the Davis medical school.
He joined the other four members of the court, however, in holding that the California courts erred in ruling that the medical school could not take the race of its applicants into consideration.
In initial reactions to the decision, both sides claimed at least a partial victory.
Mr. Bakke himself was quoted as saying he was “pleased” with the decision, but he declined further comment, saying that he wanted to maintain his privacy. One of Mr. Bakke’s lawyers, however, said that his client would enter medical school in the fall, although he would probably have to take out a loan to do so.
President David Saxon of the University of California said, “The overwhelming bulk of our [admissions] programs appear to be lawful.”
Attorney General Griffin Bell called the ruling “a great gain for affirmative action” and said President Carter was “pleased” by the ruling.
Spokesmen for some civil-rights groups also hailed the decision as upholding the concept of affirmative action in the United States. Jack Greenberg, director-counsel of the NAACP Legal Defense Fund, said the decision “means that the sort of affirmative-action programs that most schools have are constitutional and gives a solid base upon which such programs can be sustained.”
Representatives for groups that had supported Mr. Bakke’s bias claim said the decision represented a victory for them. Said Arnold Foster, general counsel for the Anti-Defamation League of B’nai B’rith:
“We view the Court’s decision as a significant victory in the effort to halt the use of quotas and their equivalent in admissions to colleges and graduate schools.”
In upholding racial considerations in admissions, Justice Powell said, “The State has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin.”
Summarizing a separate opinion he had written for the four justices who agreed that race could be a valid factor in admission decisions, Justice William Brennan told a tense, packed Supreme Court chamber last Wednesday:
“The difficulty of the issue presented -- whether government may use race-conscious programs to redress the continuing effects of past discrimination -- and the mature consideration which each of our brethren has brought to it have resulted in many opinions, no single one speaking for the Court.
“But this should not and must not mask the central meaning of today’s opinions: Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative, or administrative bodies with competence to act in this area.”
The nine Supreme Court justices filed six separate opinions.
Mr. Bakke, now 38, was twice rejected for admission to the Davis medical school in the mid-1970’s. He filed a suit charging that the special admissions program had discriminated against him and constituted “reverse bias” because minority-group applicants with lower grades and standardized test scores had been admitted.
The Supreme Court’s ruling had been awaited not only by college administrators concerned with the legality of hundreds of special admissions programs, but also by federal officials and litigants in a number of other “reverse discrimination” suits pending in courts across the country.
“I doubt ... that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case,” said Justice Thurgood Marshall in a separate opinion that traced the history of racial injustice in the U.S.
He noted that the “friend-of-the-court” brief filed by the Department of Justice in the case had said that “at least 27 federal agencies have adopted regulations requiring recipients of federal funds to take ‘affirmative action to overcome the effects of conditions which resulted in limiting participation ... by persons of a particular race, color, or national origin.’”
“It is because of a legacy of unequal treatment that we now must permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, affluence and prestige in America,” Mr. Marshall said.
While Justice Powell looked to the individual rights guaranteed by the equal protection clause of the 14th Amendment in holding that Mr. Bakke had suffered discrimination, the four other justices who ruled that Mr. Bakke should be admitted to medical school said that Title VI of the Civil Rights Act of 1964 clearly outlawed the use of race in “excluding anyone from participation in a federally funded program.”
That opinion, written by Justice John Paul Stevens, said the case could be easily decided on grounds of the provisions of Title VI, without reaching the constitutional question.
Title VI says, “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”
The Davis medical school, as well as almost every other college and university in the country, receives a variety of federal assistance.
Mr. Brennan’s opinion, expressing the minority view that the Davis program was a valid means of redressing past discrimination against members of minority groups, argued that past decisions by the Supreme Court, as well as federal regulations formulated to carry out Title VI, had established that “race-conscious action is not only permitted but required to accomplish the remedial objectives of Title VI.”
He said that was so, even without specific evidence that the medical school had itself been guilty of past bias.
Powell vs. Brennan
The Brennan opinion also argued that “Davis’s special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants rather than using minority status as a positive fact to be considered in evaluating the applicants of disadvantaged minority applicants.”
While the need for attaining diversity in a student body “clearly is a constitutionally permissible goal for an institution of higher education,” countered Justice Powell, “ethnic diversity ... is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.”
“The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end,” Mr. Powell said.
He cited Harvard University’s admissions program, in which “race or ethnic background may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for the available seats.”
“The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism,” Justice Powell said.
Such a program “treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a ‘plus’ on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname,” he concluded.
Since the University of California “conceded that it could not carry its burden of proving that, but for the existence of its unlawful special admissions program, [Mr. Bakke] still would not have been admitted,” the medical school must admit him, Mr. Powell said.
Mr. Powell denied that an admissions program that considers race only as one factor “is simply a subtle and more sophisticated -- but no less effective -- means of according racial preference than the Davis program.”
The Brennan minority opinion that held the Davis program constitutional argued:
“That the Harvard approach does not also make public the extent of the preference and the precise workings of the system while the Davis program employs a specific, openly stated number, does not condemn the latter plan” under the equal protection clause of the 14th Amendment.
One legal question that many lawyers hoped the Court might settle was left unclear -- whether Title VI and thus other laws patterned after it -- allows individuals to file private lawsuits charging discrimination.
Justice Byron R. White wrote a separate opinion saying the right did not exist, because, when Congress passed the law, it considered it a tool designed to allow federal agencies to terminate federal financial support for public and private institutions or programs that practiced race bias.
The other justices sidestepped the issue, either assuming for the purposes of the Bakke case that the right did exist, or holding that the question did not have to be settled to decide the case.
