Beginning in the 1960s, states and the federal government began to adopt ‘‘affirmative action’’ programs. These programs, typically justified as a means to counteract the lingering effects of pervasive racial discrimination, offered preferential treatment in education and employment to racial minorities. Opponents of the programs attacked them as ‘‘reverse discrimination,’’ and charged that they violated the principles of equal protection. In 1978, the Supreme Court decided its first major affirmative action case, Regents of the University of California v. Bakke. Bakke’s analysis greatly influenced the development of affirmative action jurisprudence and still controls admissions policy in higher education.
The U.C. Davis Medical School adopted a special admissions program designed to increase the representation of ‘‘disadvantaged’’ students. The special admissions program was open to ‘‘Blacks,’’ ‘‘Chicanos,’’ ‘‘Asians,’’ and ‘‘American Indians.’’ Members of these groups could qualify for the program if the chairman of the special admissions committee found that their applications demonstrated ‘‘economic or educational deprivation.’’ By faculty vote, sixteen spaces in an entering class of 100 were allocated to students admitted through the special program.
Alan Bakke, a white male, applied for admission to Davis in 1973 and 1974. In each year, his application was considered under the general admissions program and was rejected. Bakke sued in California state court, arguing that the special admissions program violated the state and federal constitutions and Title VI of the Civil Rights Act of 1964. The Supreme Court of California ultimately resolved the case only on federal constitutional grounds, ruling that the special admissions program violated the equal protection clause of the Fourteenth Amendment. It enjoined Davis from considering race in its application process and ordered Bakke’s admission.
The U.S. Supreme Court produced a strikingly fractured opinion. Justice John Paul Stevens, joined by Chief Justice Warren Burger and Justices Potter Stewart and William H. Rehnquist, would have affirmed the order to admit Bakke on the grounds that the special admissions program violated Title VI, without reaching the constitutional issue. Justices William Brennan, Byron White, Thurgood Marshall, and Harry Blackmun would have reversed both parts of the California Supreme Court’s order. In their view, strict scrutiny was appropriate for racial classifications that stigmatized or injured politically weak groups: such classifications should survive only if narrowly tailored to serve a compelling state interest. However, they argued that benign discrimination, like the special admissions program, should be permitted if it substantially furthered an important state interest, the same ‘‘intermediate’’ level of scrutiny applied to sex-based discrimination. They believed that Davis’s interest in ‘‘remedying the effects of past societal discrimination’’ was sufficiently important to justify the special admissions program.
Justice Lewis F. Powell, writing in large part only for himself, rejected the idea that the level of scrutiny under the equal protection clause should turn on factors such as stigma, political power, or a history of discrimination. He asserted that all racial classifications should receive strict scrutiny. ‘‘It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.’’ He thus asked whether Davis could demonstrate a compelling state interest, and he did not believe that overcoming the effects of societal discrimination qualified. Instead, Powell found that a medical school had a compelling interest, rooted in academic freedom, in promoting diversity to ‘‘enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.’’ This was not, however, ‘‘an interest in simple ethnic diversity,’’ but rather ‘‘a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.’’ Davis’s special admissions program, he found, was not necessary to this goal and indeed ‘‘would hinder rather than further attainment of genuine diversity.’’ As an alternative model, Powell recommended the Harvard College program, which ‘‘considers race only as one factor’’ among many.
Powell’s split votes led the Court to reverse the injunction against the use of race in the admissions process but affirm the order admitting Bakke.
Despite the lack of a clear majority opinion, Bakke’s impact on equal protection jurisprudence has been immense. Justice Powell’s argument that ‘‘[t]he guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color’’ provided the rationale adopted by the Supreme Court in City of Richmond v. J.A. Croson Co. (1989) and Adarand v. Pena (1995), holding that all racial classifications should receive strict scrutiny.
In the specific context of higher education, Bakke’s effect was understandably even more profound. Many, if not most, race-conscious admissions programs, like that of Davis, had been adopted out of a desire to promote equality or remedy societal discrimination. Powell’s rejection of this ‘‘amorphous concept’’ as insufficient to constitute a compelling interest forced admissions committees to justify their programs on grounds of diversity, regardless of the actual motive. The merits and nature of diversity became a central issue in the political debate over affirmative action, and the key concept in designing both admissions programs and litigation strategies. Commentators suggested that Bakke had produced pervasive subterfuge and prevented a frank discussion of the costs and benefits of affirmative action.
When the Supreme Court revisited the issue, in Gratz v. Bollinger (2003) and Grutter v. Bollinger (2003), it endorsed Justice Powell’s analysis of diversity. The Court struck down the University of Michigan’s undergraduate admissions system, but it upheld the Law School’s program, reaffirming that raceconscious admissions programs are constitutionally permissible as long as they offer applicants individualized consideration and weigh race as one factor among many. The prohibition of ‘‘mechanical’’ quantitative systems prevents race from being an overt deciding factor in any individual case, although presumably it will be decisive in some. Because individualized assessment is more expensive and time consuming, the Gratz-Grutter rule also raises the cost of affirmative action programs for schools. Like Bakke itself, the Court’s current position on affirmative action is less a stable compromise than the temporary stalemate of starkly opposed forces. Time will tell how long it endures.
KERMIT ROOSEVELT III
References and Further Reading
Cases and Statutes Cited