Bakke Wins, Quotas Lose

This cover story was originally published in the July 10, 1978 issue of Time Magazine, which can be viewed online here

Time Magazine_Cover_Jul 10 1978_ThumbIt had been heralded as the most important civil rights case since Brown vs. Board of Education, the 1954 ruling that outlawed racial segregation in the schools and ultimately in all of American life. The nation had moved far in 25 years, but the goal of equality had remained elusive, and the question now before the Supreme Court in the case of Regents of the University of California vs. Bakke seemed infinitely perplexing: Is it fair to give some preference to blacks over whites in order to remedy the evils of past discrimination?

Split almost exactly down the middle, the Supreme Court last week offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of “affirmative action,” the system by which the Government is pressuring U.S. universities, corporations and other institutions to provide more jobs and better pay for millions of blacks, other minorities and women. Despite a flurry of protest demonstrations by militants, most observers praised the court for a cautious but astute effort at reconciling conflicting forces—but they also foresaw many future conflicts in the actual carrying out of the court’s new edict.

The momentous decision came quietly, for it is never known exactly when the court will hand down an historic ruling. One traditional clue, though, is the appearance of the Justices’ wives, so there was a rustle of anticipation in the crowded courtroom just before 10 last Wednesday morning at the sight of Cecelia Marshall, Marjorie Brennan, Mary Ann Stewart and Elizabeth Stevens. The wives had arrived.

At exactly 10, Chief Justice Warren Burger stepped from behind the red velvet curtains and entered the courtroom. Eight other black-robed Supreme Court Justices followed as the marshal of the court sang out: “Oyez, oyez, oyez!” and invoked the blessing of God on the “United States and this honorable court.” The Justices seemed more solemn than usual.

Burger began by asking Potter Stewart to announce a routine decision on a pensions benefit case, then announced a minor decision himself. Finally it came, third on the list: Case No. 76-811. Regents of the University of California vs. Bakke. As a hush enveloped the courtroom, Associate Justice Lewis Powell, a frail, bespectacled Virginian, began to speak in an emotionless monotone: “Perhaps no case in my memory has had so much media coverage. We speak today with a notable lack of unanimity. I will try to explain how we divided.”

He thereupon declared that the court had ruled in favor of Allan Bakke, 38, the California engineer who so desperately wanted to be a doctor and would now finally have his opportunity. In a 5-to-4 decision, the court affirmed the lower-court order admitting him to medical school at the University of California at Davis, because its special admissions program for minorities had violated Title VI of the Civil Rights Act of 1964. Powell said that quotas based entirely on race, in situations where no previous discrimination had been found, were illegal. But a majority of the court also declared, 5 to 4, that a university could continue to take race into consideration in admissions.

Bakke was not a sweeping decision resounding with memorable phrases. But by ruling narrowly and indeed delicately, the court had apparently succeeded in finding a middle ground between stridently opposed forces on the deeply emotional issue of “reverse discrimination.” If no hosannas were being sung in the streets, there were widespread sighs of relief. The court had accomplished the near impossible: it had handed down a decision that would partly satisfy most people and strongly dissatisfy only a few. It was an exercise in judicial pragmatism in the tradition of a politically aware, not overly ideological court. The decision is an “act of judicial statesmanship,” said Harvard Law Professor Alan Dershowitz. “The decision will go down in history not for what it did but for what it didn’t do.” Added his colleague Paul Freund: “The very fact that it is somewhat fuzzy leaves room for development, and on the whole that’s a good thing.”

The key swing vote in the decision, the man squarely in the middle, was Powell, who was never that sure he wanted to be a judge in the first place. Quiet, scholarly, wistful and widely respected for his legal acumen, he agreed in part with two different groups within the court. He accepted a portion of the opinion of the four Justices who upheld the California Supreme Court decision in favor of Bakke: Burger, William Rehnquist, John Paul Stevens and Potter Stewart. He also sided in part with the four Justices who decided against Bakke: William Brennan, Harry Blackmun, Thurgood Marshall and Byron White. He thus ended by writing the critical opinion for a sharply divided court.

Writing six different opinions totaling 154 pages, the Justices were as torn by the issue as was the rest of the nation. The case had attracted 61 amicus curiae briefs, the most that had ever been submitted in the history of the court. “The Justices really agonized,” said an inside observer. Three times the opinions were sent to the printer only to be pulled back for additions, deletions and revisions. The version finally made public was the fourth. Blackmun, in particular, had trouble making up his mind. Though he and Burger have often been paired as the Nixon-appointed and conservatively inclined “Minnesota twins,” he decisively parted with his colleague on this issue.

At one point during deliberations the Justices considered holding the case over until the next term, which begins in October. Some of them were dissatisfied with the records from the lower court. Key questions, they felt, had not been answered because they had not been asked. But on considering the matter, the Justices thought they might look foolish if they postponed their decision in a case of such urgency. Said an observer: “They were worried about the public perception of the court if it failed to deal with Bakke now.”

They had another reason not to delay: they had already done so once before. TIME has learned that the court had a majority ruling in favor of Marco DeFunis, the white applicant who claimed that he was refused admission to the University of Washington law school on grounds of race. Since he was subsequently admitted to the school, the Justices decided to avoid the issue by declaring the case moot. But to duck the issue again would leave the court open to charges of shirking its responsibility.

In a public display of their tortuous deliberations, an unusually large number of Justices decided to explain their positions in court. Only three—Burger, Rehnquist and White—did not speak. Stevens, the court’s newest member, crisply stated why Bakke had won. The court did not decide on constitutional ground, Stevens emphasized. The decision had been based on Title VI of the 1964 Civil Rights Act, which prohibits racial discrimination in any program receiving federal funds. Said Stevens: “It is an unusually clear, color-blind statute.”

The court’s only black Justice, Marshall, was the last to speak. Though he normally comments in subdued tones from the bench, the longtime civil rights fighter leaned toward the microphone and boomed out his thoughts. “The position of the Negro today in America is tragic,” he said gravely. “I’m talking about today.” Marshall argued that the Bakke decision would perpetuate second-class citizenship for the Negro, consigning him to a shorter life, more poverty, less education, more unemployment than the white majority.

In his decisive opinion, Powell declared that the language against discrimination in Title VI is “majestic in its sweep,” like that of the 14th Amendment.

“No person in the United States,” says Title VI, “shall, on the ground of race, color, or national origin, be excluded from participation in any program or activity receiving federal financial assistance.”

Davis’ special admissions program reserved 16 out of 100 places for disadvantaged minority students. In an attempt to demonstrate that this was not an unlawfully discriminatory act, as Bakke had charged, the California regents argued that Davis was only pursuing a “goal” of greater minority representation. But this was a semantic distinction, said Powell, and beside the point. The program was “undeniably a classification based on race and ethnic background,” and thus violated both Title VI and the equal-protection clause of the 14th Amendment.

Powell rejected the regents’ view that a quota is acceptable if it is “benign.” He rejected the notion that the white majority has a right to discriminate against its own members. Strictly speaking, there is no such majority, he wrote, for the U.S. contains all kinds of ethnic groups that can claim varying degrees of past discrimination. If they were all assured a minimum number of places, the only “majority” left would be a “new minority of white Anglo-Saxon Protestants.” There is no way for a court to decide which of these groups merit “heightened judicial solicitude.” Powell noted that Davis was unable to explain why it had singled out certain groups for special favor:

Negroes, Mexican Americans and Asians.

Special programs, Powell continued, may only “reinforce common stereotypes,” since they imply that certain groups need extra help to succeed in life. These efforts can also heighten racial tensions, because groups left out may become resentful. They will probably take little comfort in the fact that they are being deprived only because they are in the white majority. “One should not lightly dismiss the inherent unfairness of a system of allocating benefits and privileges on the basis of skin color and ethnic origin.”

Racial preference had been upheld by the court in previous cases involving school desegregation and discrimination in employment, Powell acknowledged. But in these cases, the court had acted in response to past discrimination, which was not the case at the newly founded Davis school.

Powell concluded his opinion by suggesting a way for Davis to correct its unconstitutional program.

It should follow the admissions policies established in the 1960s at Harvard, which attempts to recruit a diverse student body without setting racial quotas (most U.S. colleges have similar programs). Race is a factor that is considered along with geographical location or athletic or artistic ability. Powell listed some other qualities that might be considered: unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage. Race can help a student get into Harvard, he wrote, but by no means assures admission. The number of minority students varies from year to year (8.1% of the undergraduates admitted for the fall semester are black, 5.7% Asians, 4.6% Hispanic and .4% American Indians). Powell conceded that such a flexible program may be a subtle and sophisticated way of disguising a racial quota. But he presumed that a university would operate it on good faith. The “fatal flaw” in the Davis program, he wrote, was its “disregard of individual rights as guaranteed by the 14th Amendment.”

In an opinion as long as Powell’s, Brennan took a more sweeping view of past discrimination and of the measures needed to correct it. Citing the founding fathers’ acceptance of slavery, he sketched a brief history of discrimination and concluded that racism has been too pervasive for Americans to try to disregard race today. “Against this background, claims that law must be color blind or that race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. We cannot … let color blindness become myopia.”

In none of its cases, said Brennan, had the Supreme Court ever ruled that the Constitution is color blind. It does not make sense, he declared, to try to eliminate the evil of racial discrimination and then forbid the remedies that are required to accomplish this. Congress avoided any “static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity and evolving judicial doctrine.”

Brennan agreed that racial preference could not be condoned simply on the grounds that it was being undertaken for benign purposes. But he thought the Davis program for minority applicants was justified. It aimed to remedy “substantial and chronic underrepresentation” of minorities in the field of medicine. No proof is needed, said the Justice, to show that those who benefit from the program have been victims of discrimination. They fall within a “general class” of people who have suffered discrimination. Whites, it is true, are excluded from the program, but they are not stigmatized.

Brennan concluded that there was no practical alternative to the Davis program. Setting aside places for disadvantaged students without regard for race would not work. Whites would still outnumber blacks. Brennan could see no constitutional distinction between the Davis and Harvard programs.

Putting it rather wryly, he said the only difference was that Davis was open about its racial-quota system, while Harvard more prudently achieved its racial balance in private. But there is no reason to prefer the Harvard program just because it “proceeds in a manner that is not immediately apparent to the public.”

If it took Blackmun longer than the other Justices to reach a decision in the case, he expressed it all the more passionately in his separate opinion. He wrote that he would “yield to no one in my earnest hope that the time will come when an affirmative-action program is unnecessary and is only a relic of the past.” But the slow pace of desegregation after Brown vs. Board of Education had convinced him that his hope is a “slim” one. He thought it was ironic that the injection of race into university admissions could cause such a disturbance, when preferences have always been given to “those possessed of athletic skills, to the affluent who may bestow their largesse on the institutions, and to those having connections with celebrities, the famous and the powerful.” He concluded: “In order to get beyond racism, we must first take account of race.”

What will be the impact of this painstakingly assembled Supreme Court decision? The only undeniable winner is Allan Bakke, who can enroll at Davis medical school this fall after his five-year battle.

There is some speculation that he may give up this opportunity and remain an engineer at the Ames Research Center, a NASA laboratory where he has worked since 1967. But he insists that he plans to study medicine, and his attorney, Reynold Colvin, says his client is no social crusader. “He’s a private man who felt that he’d been dealt with unfairly,” says Colvin, who has advanced his client much of the cost of the long campaign. “He has stuck with it because it’s his dream to become a doctor. He’s a determined gentleman.”

If a characteristic Caucasian male had to be invented, he would bear a close resemblance to Bakke. Just under 6 ft., blond and blue-eyed, Bakke has the looks of his Norwegian forebears. As the first faculty member to interview him at Davis wrote, “He is a pleasant, mature person—tall and strong and Teutonic in appearance.” Bakke was born in Minneapolis; his father was a mailman, his mother a teacher. He majored in engineering at the University of Minnesota, where he had close to an A average. After graduation he joined the Marines and spent seven months in Viet Nam as commander of an anti-aircraft missile unit.

When he returned, he earned a master’s degree in engineering it Stanford and went to work _t Ames. But he grew fascinated with medicine as he studied the effects of space flight on the human body. In his spare time, he took a job as an unpaid hospital volunteer, handling the mangled victims of auto accidents and street brawls.

In the fall of 1972 he applied to several medical schools, including Davis. Along with his solid academic record, he scored at the 90th percentile in most of his medical school admission tests. But he was turned down by every school, perhaps because he was relatively late in applying (there had been serious illness in the family), perhaps because he was already 33.

Told that he was almost accepted by Davis, he reapplied and wrote: “I know my motivation is as strong and honest toward a career in medicine as that of any applicant, more than of anyone else in the world.” Once again he was rejected.

He sued and won on appeal in the California Supreme Court. Throughout the pressures of the court battle, Bakke refused to be interviewed or have his picture taken. He even stayed away from his wife and two children at their home in Los Altos, Calif., if he thought he would encounter reporters. When photographers finally tracked him down last week, they found him up in a tree, picking apricots.

And when one of his attorneys called to tell him of the Supreme Court decision, he was typically laconic. “Great,” said Bakke. “You guys did it.” Replied the attorney: “No, you did.”

Was Bakke’s victory a defeat for the nation’s blacks? Some prominent blacks thought so. The Rev. Jesse Jackson, president of Chicago’s Operation PUSH, considered the ruling a “devastating blow to our civil rights struggle, though not a fatal one. It is consistent with the country’s shift to the right, a shift in mood from redemption to punishment.” California Congressman Ron Dellums felt that “most Americans only want to know if Bakke won or lost. The fact that he won will underscore the attack on affirmative action. It is still alive and breathing, but with great difficulty.”

Others took a more evenhanded view.

N.A.A.C.P. Executive Director Benjamin Hooks called the decision “a mixed bag, both a victory and a defeat.” Coretta Scott King saw neither defeat nor victory, but warned that “the decision could be misinterpreted by people who want to use it to their own advantage. The people who were against us are going to take this as a signal.” Vernon Jordan of the National Urban League denounced the outlawing of the Davis program, but he felt that the court’s endorsement of race as an element in university admissions “should constitute a green light to go forward with acceptable affirmative-action programs.”

Not all blacks, in fact, are comfortable with quotas, which seem to stigmatize them as second-class citizens in need of special remedies. Says Thomas Sowell, professor of economics at U.C.L.A.: “The message that comes through loud and clear is that minorities are losers who will never have anything unless someone gives it to them.”

High Administration officials emphasized the hopeful possibilities, arguing that the court had approved what the Government was already doing, “This is the first time the Supreme Court has upheld affirmative action,” said U.S. Attorney General Griffin Bell after briefing President Carter, “and it has done it in about as strong a way as possible.” HEW Secretary Joseph Califano was equally emphatic. The decision, he said, “strongly supports this nation’s continuing effort to live up to its historic promise—to bring minorities and other disadvantaged groups into the mainstream of American society through admissions policies that recognize the importance of diverse, integrated educational institutions.”

Many educational institutions have adopted affirmative-action programs without overt federal pressure, so there is no reason to expect them to abandon their efforts. (President David Saxon of the University of California system, which will now have to admit Bakke, managed to call the court’s approval of affirmative action “a great victory for the university.”) Stanford Political Scientist Seymour Martin Lipset believes that “racial quotas could become a sort of unwritten condition, like geographic quotas. Then race becomes subjective on the part of admissions directors, and minorities could be either more or less discriminated against. But in this day and age, minorities will probably get the advantage if left to subjective selection.” Adds Norman Dorsen, board chairman of the American Civil Liberties Union: “Institutionally and practically, it is the school admissions officers and administrators who will be crucial in determining what the impact of the Bakke decision will be.”

In not relying on quotas, universities may have to use more ingenuity in finding qualified minority students. “I think there has to be more active recruitment of minorities,” says California Governor Jerry Brown. “Top management can’t just go out and set up an affirmative-action program and then sit back and drink brandy and smoke cigars. They’ve got to put more energy into finding people and letting them know they truly want their school or profession to reflect the population at large.” Joseph Ceithaml, admissions officer and dean of students at the Pritzker School of Medicine at the University of Chicago, thinks the “emphasis will be more on preparing minorities and building a pool of minority students to draw from. This may mean fewer accepted applicants among minorities in the next few years until the pool is built up.”

Some believe the Bakke decision will make it easier for blacks and whites to work together on affirmative action. Says New York Senator Pat Moynihan: “A bureaucracy that says, ‘White teachers get in this line and blacks in this line,’ threatens to break up the coalition that worked for affirmative action in the first place. The Bakke decision gets us back into a sensible mainstream idea of what affirmative action should be. Maybe now we can put the coalition back together.”

The Bakke decision, some observers feel, is an appeal to treat people as individuals rather than as members of categories. Says Syracuse University Religion Professor Michael Novak: “I think that like a great aircraft carrier, the court changed direction, and only two or three degrees of that direction are apparent now. But I hope this means an increased respect for the fact that every individual has a history, and that history has some relevance.” Nathan Glazer, Harvard professor of education and author of Affirmative Discrimination, believes that “what the Supreme Court called for is human. It is asking for the kind of behavior any commonsensical human being would believe in.”

Although the Supreme Court’s ruling may have broad implications in all aspects of race relations, it deals specifically with university admissions. Powell’s long decision did not directly address the equally fundamental issue of affirmative action with respect to jobs and promotions, areas in which quotas of various sorts are widespread (and widely disputed). Under a Labor Department program, for example, firms employing 50 or more people and receiving federal contracts of more than $50,000 are given about five years to increase the number of minority employees until the percentage of these employees in the company matches their proportion in the surrounding population. Otherwise, the firms may lose their federal contracts.

Eleanor Holmes Norton, head of the Equal Employment Opportunity Commission, confidently asserted last week that the Bakke decision would make no difference in the effort to achieve hiring and promotion goals. “My reading of the decision,” she said, “is that we are not compelled to do anything differently from the way we’ve done things in the past, and we are not going to.” Many businesses report that EEOC officials pressure them to hire additional women and members of minority groups but do not mention specific numbers. This means the companies have to estimate what numbers will satisfy the bureaucrats who administer the law. “It’s like saying, ‘Wrong, guess again,’ ” observes an industrial relations official at a company that must deal with eleven affirmative-action officials, each with his own set of goals.

The Supreme Court will presumably have to deal with these conflicts, for several pending cases will test the Government’s use of preferential treatment in employment. The Communications Workers of America have petitioned the Supreme Court to review a costly agreement between the Federal Government and American Telephone and Telegraph Co. By setting ambitious goals for the promotion of women and minorities, the Government violated seniority rights as well as the 14th Amendment, the union charges. In another case, California building contractors have sued to overturn a requirement of the Public Works Employment Act of 1977 that 10% of the federal grants go to minority businesses. A U.S. district court ruled that the provision was a violation of both the 14th Amendment and Title VI. Wrote Judge A. Andrew Hauk: “Affirmative action and goals are permissible; race quotas are not. It is as simple as that.” Suits have also been brought challenging the federal program that establishes goals for employment of minorities by federal contractors. In the case of Weber vs. Kaiser Aluminum, an applicant sued Kaiser and his union for excluding him from a job-training program in which half the openings were reserved for minorities. The Fifth Circuit Court of Appeals ruled in Weber’s favor.

Some experts criticized the Supreme Court for not coming to grips with these problems as part of the Bakke ruling. “It was a landmark occasion, but the court failed to produce a landmark decision,” said Yale Law Professor Bruce Ackerman. The key weakness in the court’s ruling, he added, was the failure to define what proof of past discrimination would be needed to justify preferential treatment. “The question that wasn’t talked about is: What is the role of numbers in proving past discrimination? Do you have to show actual intent to discriminate, or is the fact that there are no blacks in the work force, enough? There is a body of law on this issue, but it is confusing and obscure. We have not heard the last word on this by any means.”

Virtually everyone acknowledges that the issue is far from settled.

Litigation will continue, perhaps at ” faster pace. “The Supreme Court has not stopped something,” says former U.S. Solicitor General Robert Bork, who now teaches law at Yale. “It has started something.” Probably more white males will be tempted to file suit against affirmative-action programs on the grounds that they are really hidden quota systems.

Appropriately, Bakke Attorney Colvin is already anticipating such cases. “What about Bakke Junior?” he asks. “What about the student who comes along and questions the application of the program?

If they can assign 50 points to minority status for admission, why can’t they assign 500 points?”

This prospect of endless litigation is not appealing. “Litigation is a terrible way of solving complicated social issues,” says David Riesman, Harvard professor of social sciences. “What I fear we are facing now is full employment for lawyers, as the rising sense of entitlement among groups and individuals takes hold with more bitterness at all levels.” On the other hand, it can be said that this argument and redefinition is essential to the gradual resolution of race relations in America. It is a process that demands of both whites and blacks that they fight for their interests, individually as well as collectively, in the courtroom as well as the marketplace and the voting booth.

In some ways, perhaps, the Bakke case failed to live up to its advance billing. It did not provide a decisive answer to a burning question. It did not say: thus far and no further. For some, such caution is a sign of indecisiveness, a reluctance to confront major problems. But diffidence on the part of the courts is often well advised. The Supreme Court may not be following the election returns, as is often charged, but it is attentive to political reality, the art of the possible in a society of great numbers of competing and often conflicting groups. Blacks remain free to continue to press for greater representation in schools and jobs; the minorities that make up the white majority are free to continue to assert their needs as well.

Many more Bakke-like cases are sure to follow, and none of them is likely to be final. In an evolving democratic society, there are, inevitably, no final answers.

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