Regents of the University of California v. Bakke

Bakke and forth: the twists and turns of Affirmative Action

I had planned to space things out as I get started. Both to give myself time to process and to incorporate feedback. The main focus of my writing is reviewing new opinions. Revisiting older cases is a way to pass the time and talk about different aspects of the Supreme Court. As I’m writing this we’re expecting opinions in new cases tomorrow. Two of the cases yet to be decided address the use of racial preferences in college admissions. It will be difficult to address whichever way the Court rules without having a firm background in the debate. This is a lengthy piece because we need to address the original case as well as 2003’s Grutter v. Bollinger which upheld that decision.

This case from 1978 ranks behind only Roe v. Wade (and perhaps Miller v. California) as controversial and impactful cases from the Burger Court. That’s not a pun, by the way, SCOTUS eras are denoted by the serving Chief Justice. In this case it’s Warren Burger.

We start with the text of the opinion. Here’s the PDF and here is the link to Justia. The history of affirmative action is lengthy enough for several books. Fortunately we can cut to the chase. The University of California Davis School of Medicine opened in 1968. The first class was, as you might expect, all white. From the syllabus:

A separate committee, a majority of whom were members of minority groups, operated the special admissions program. The 1973 and 1974 application forms, respectively, asked candidates whether they wished to be considered as "economically and/or educationally disadvantaged" applicants and members of a "minority group" (blacks, Chicanos, Asians, American Indians). If an applicant of a minority group was found to be "disadvantaged," he would be rated in a manner similar to the one employed by the general admissions committee. Special candidates, however, did not have to meet the 2.5 grade point cutoff and were not ranked against candidates in the general admissions process.

Minority group candidates were given special consideration and faced less stringent criteria. Crucial to this case, the university also set aside a certain number of spots in the class. Allan Bakke was a former Marine who applied to the medical school but was rejected. Had he been a member of a minority group he could have gotten one of the spots set aside for that purpose, but he was white. He applied again the following year and was yet again denied.

After his second rejection, respondent filed this action in state court for mandatory, injunctive, and declaratory relief to compel his admission to Davis, alleging that the special admissions program operated to exclude him on the basis of his race in violation of the Equal Protection Clause of the Fourteenth Amendment, a provision of the California Constitution, and § 601 of Title VI of the Civil Rights Act of 1964, which provides, inter alia, that no person shall on the ground of race or color be excluded from participating in any program receiving federal financial assistance.

The specific question presented, from the petition for cert was:

When only small fraction of thousands of applicants can be admitted, does the equal protection clause forbid a state university professional school faculty from voluntarily seeking to counteract effects of generations of pervasive discrimination against discrete and insular minorities by establishing a limited special admissions program that increases opportunities for well-qualified members of such racial and ethnic minorities?

Justice Powell wrote for the ‘majority’:

The judgment below is affirmed insofar as it orders respondent's admission to Davis and invalidates petitioner's special admissions program, but is reversed insofar as it prohibits petitioner from taking race into account as a factor in its future admissions decisions.

The Court splits the difference. They prohibit a quota system but do allow the university to have racial preferences in admissions. Simple.

Well.

Let’s skip to the end of the syllabus and look at which justices agreed.

POWELL, J., announced the Court's judgment and filed an opinion expressing his views of the case, in Parts I, III-A, and V-C of which WHITE, J., joined; and in Parts I and V-C of which BRENNAN, MARSHALL, and BLACKMUN, JJ., joined. BRENNAN, WHITE, MARSHALL, and BLACKMUN, JJ., filed an opinion concurring in the judgment in part and dissenting in part. WHITE, J.,  MARSHALL, J.,  and BLACKMUN, J., filed separate opinions. STEVENS, J., filed an opinion concurring in the judgment in part and dissenting in part, in which BURGER, C.J., and STEWART and REHNQUIST, JJ., joined.

I can feel your eyes glazing over. Keeping it simple, the Supreme Court can only rule in a case when it has a majority of justices agreeing. There were nine justices on this case so five of them, Powell, White, Brennan, Marshall, and Blackmun, all are in the majority that agree that racial preferences at universities are permissible. Justices Stevens, Burger, Stewart, and Rehnquist agree that Bakke should have been admitted but do not address racial preferences at all.

Justice Powell is the author of the majority opinion. That makes it the precedent for lower courts who are the first to hear future cases on this issue. As you’ll see, this is a bit of an odd situation because he only has a majority of the justices agreeing with him in a few areas.

He writes that discrimination in the form of racial preferences is only constitutional if the government has a compelling interest in the outcome.

The fourth goal asserted by petitioner is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.

He states that a diverse student body is compelling because the university has the freedom to set their own guidelines and they find it is valuable. He also finds that the admission program employed by UC-Davis is unconstitutional.

The fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteenth Amendment. Shelley v. Kraemer, 334 U. S., at 22. Such rights are not absolute. But when a State's distribution of benefits or imposition of burdens hinges on ancestry or the color of a person's skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest. Petitioner has failed to carry this burden. For this reason, that portion of the California court's judgment holding petitioner's special admissions program invalid under the Fourteenth Amendment must be affirmed.

Opinions from the Court can be divided into parts. Each part addresses a different topic. In general Part I is a recap of the case going into more detail than the syllabus. Justices White, Brennan, Marshall, and Blackmun join Powell’s opinion in Part I and Part V-C. Here is the complete text of Part V-C:

In enjoining petitioner from ever considering the race of any applicant, however, the courts below failed to recognize that 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. For this reason, so much of the California court's judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.

This is the majority opinion. That paragraph alone is what five justices agree with. Universities can use racial preferences as a part of a larger admissions program.

White, Brennan, Marshall, and Blackmun agree that racial preferences are acceptabl. Instead of Powell’s compelling interest and academic freedom rationale, though, these four write:

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.

This is far more consequential than Powell’s conclusion that a university has a right to create a diverse place of learning. This different justification would extend to nearly every governmental program. They even go so far as to uphold a quota system.

Finally, Davis' 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 factor to be considered in evaluating the applications of disadvantaged minority applicants.

As they disagreed with Powell (and the Burger posse), this is not officially precedent on its own. While I do try to provide a neutral recap of the cases I’m not unbiased. I am not a fan of what Stevens et. al. have written here and am glad that Powell did not agree with them.

There are six(!) separate opinions in this case. We don’t need to address them all as the opinion from Justice Stevens, joined by justices Burger, Stewart, and Rehnquist, is what’s important.

These four do not think that the constitutional question comes into play at all.

Both petitioner and respondent have asked us to determine the legality of the University's special admissions program by reference to the Constitution. Our settled practice, however, is to avoid the decision of a constitutional issue if a case can be fairly decided on a statutory ground.

This is the case with a majority of Supreme Court decisions, they’re just the ones who don’t make headlines. If a question can be answered narrowly it should be answered narrowly. For them, he should be admitted and he was. They do note that he wasn’t admitted due to his race and they do not approve of that.

In unmistakable terms the Act prohibits the exclusion of individuals from federally funded programs because of their race." As succinctly phrased during the Senate debate, under Title VI it is not "permissible to say 'yes' to one person; but to say 'no' to another person, only because of the color of his skin."

They concur with the judgment of Powell that UC-Davis’s quota system is not permissible.

Accordingly, I concur in the Court's judgment insofar as it affirms the judgment of the Supreme Court of California. To the extent that it purports to do anything else, I respectfully dissent.

Are we still all on the same page? In 1978 the Supreme Court ruled that affirmative action in universities is permissible in certain ways. Four justices wrote separately that broad affirmative action is constitutional and could even be seen as required. Four others wrote separately that the specific admissions preference program before them was unconstitutional.

There are some parts of the judicial system that don’t entirely make sense. This is one of them. The only true precedent set here is that some forms of racial preferences are acceptable. But Powell’s opinion is the majority opinion and thus is the guide for lower courts. There was some discussion about whether or not it should be since he only had a limited majority. That was addressed in the next major SCOTUS case to address affirmative action, Grutter v. Bollinger in 2003.

I won’t get into a comprehensive look at the case at this point because all it really does is reaffirm Bakke. Grutter was decided 5-4, with an opinion from Sandra Day O’Connor, joined by Stevens, Souter, Gisburg, and Breyer. Here is the central holding:

The Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause, Title VI, or § 1981.

The opinion also clarifies that Justice Powell’s rationale, dispite being from one justice, is the controlling opinion that should guide lower courts when evaluating similar cases.

Since Bakke, Justice Powell’s opinion has been the touchstone for constitutional analysis of race-conscious admissions policies. Public and private universities across the Nation have modeled their own admissions programs on Justice Powell’s views. Courts, however, have struggled to discern whether Justice Powell’s diversity rationale is binding precedent. The Court finds it unnecessary to decide this issue because the Court endorses Justice Powell’s view that student body diversity is a compelling state interest in the context of university admissions.

O’Connor specifies that race preferences are only permitted as part of a wholesale drive for a diverse student body, a diversity that encompasses more than racial diversity.

We are satisfied that the Law School’s admissions program does not. Because the Law School considers “all pertinent elements of diversity,” it can (and does) select nonminority applicants who have greater potential to enhance student body diversity over underrepresented minority applicants.

O’Connor is not naive or unaware of the arguments against this. If the Supreme Court decides in 2023 that racial preferences are not permitted in any form, the opinion will cite this passage from her in 2003:

We are mindful, however, that “[a] core purpose of the Fourteenth Amendment was to do away with all governmentally imposed discrimination based on race.” Accordingly, race-conscious admissions policies must be limited in time. This requirement reflects that racial classifications, however compelling their goals, are potentially so dangerous that they may be employed no more broadly than the interest demands. Enshrining a permanent justification for racial preferences would offend this fundamental equal protection principle. We see no reason to exempt race-conscious admissions programs from the requirement that all governmental use of race must have a logical end point. The Law School, too, concedes that all “race-conscious programs must have reasonable durational limits.”

Also in her opinion she famously states:

It has been 25 years since Justice Powell first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. See Tr. of Oral Arg. 43. We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today

It’s only been 20 years but what’s five years between friends?

Before we pop over to the last case we need to look at, let’s have some fun reading Justice Thomas’s absolutely blistering dissent. It’s likely that if the Court does strike down affirmative action he will author the opinion. He’s been passionate about this his entire life.

Like Douglass, I believe blacks can achieve in every avenue of American life without the meddling of university administrators. Because I wish to see all students succeed whatever their color, I share, in some respect, the sympathies of those who sponsor the type of discrimination advanced by the University of Michigan Law School (Law School). The Constitution does not, however, tolerate institutional devotion to the status quo in admissions policies when such devotion ripens into racial discrimination.

…

Racial discrimination is not a permissible solution to the self-inflicted wounds of this elitist admissions policy.

The majority upholds the Law School’s racial discrimination not by interpreting the people’s Constitution, but by responding to a faddish slogan of the cognoscenti.

He is most certainly not a fan.

Finally in another case heard at the same time, Gratz v. Bollinger, the Court ruled against the University of Michigan’s undergraduate admissions program (Grutter looked at the university’s law school). There a 6-3 majority held that a point system was too close to a quota and is unconstitutional. O’Connor wrote a concurrence that explains the difference pretty well. You can find it in this PDF on page 32, or linked here.

Although the Office of Undergraduate Admissions does assign 20 points to some “soft” variables other than race, the points available for other diversity contributions, such as leadership and service, personal achievement, and geo graphic diversity, are capped at much lower levels. Even the most outstanding national high school leader could never receive more than five points for his or her accomplishments—a mere quarter of the points automatically assigned to an underrepresented minority solely based on the fact of his or her race.

Overturning of the Bakke and Grutter decisions could be done narrrowly or broadly. The narrow view would emphasize the right of a university to shape its own campus and class environment. That is still a valid point from Justice Powell. And the specific policies at Harvard and UNC (the two cases before the Court) can be read as unconstitutionally discriminatory without tossing the whole endeavor. And the issues in those cases provide that option.

I am not a prognosticator but I do not believe that will be what is decided. Universities have spent years working their way around outright state bans on affirmative action (California passed one in 1996). The Supreme Court harshly judges end-runs around the law.

The petitioners are different today as well. Instead of white citizens, the two cases now are brought by Asian-Americans who are themselves a smaller minority than black applicants to universities. That could play a significant role in the decision.

Thank you for your patience, this was a bit of a long one. See you all on Thursday, June 21 when we take our first long-form look at new opinions.