The so-called Bakke decision was the earliest in which the United States Supreme Court addressed affirmative action. The case certainly did not mean and end to the issues involved, and there have been several attempts to overturn the Bakke decision since. It has been referred to as a reverse discrimination case, and it was of great import when it was decided in the late 1970s after nearly a decade of affirmative action to bring more blacks and members of other minorities into the mainstream of work and academic life through programs of recruitment and special assistance to redress historical imbalances and discrimination. The issue of affirmative action remains a difficult one for Americans to this day. Affirmative action is often characterized as a quota system, though quotas need not be part of affirmative action at all. The Bakke case was an early challenge to affirmative action but did not end it by any means.
Affirmative action is usually directed at correcting past discrimination against minority groups, usually black but also Hispanic groups. It has also been used to correct discriminatory practices directed at women in education, the workplace, and elsewhere. In general, affirmative action is supported by liberals and the Democratic Party and opposed by conservatives and the Republican Party. Minority groups tend to support affirmative action, though some leading black political leaders have opposed it, such as Ward Connerly in California. Educators also support affirmative action, seeing this as a way of assuring diversity and so of making the educational experience more valuable for everyone. Many opponents have been like Bakke himself, whites who believe they have been the victims of reverse discrimination because positions that would have gone to them have instead been reserved for members of minority groups.
The decision in Regents of the University of California v. Bakke (438 U.S. 268, 1978) came in a case that started at the University of California at Davis, a university that had two admissions programs for its entering class of 100 students, based on a reading of the court case itself. The first was the regular admissions program, complemented by the special admissions program, with the latter involving certain grade and scoring concessions in order to bring in more minority candidates. Bakke was a white male who applied to Davis in 1973 and 1974 under the general admissions program. He was rejected in spite of having higher scores and grades than many minority applicants who were admitted. Bakke sued under 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. He sued on the grounds that no person should be denied participation in any program receiving federal funding for reasons of race or color. The trial court found that the special program did operate as a racial quota and that the program violated the Federal and State Constitutions and Title VI.
The case was then taken to the U.S. Supreme Court, and Justice Powell wrote the majority opinion. Justice Powell found that the program at Davis included elements of special preference and stated that there are serious problems of justice connected with the idea of preference itself: 1) it is not clear that a so-called preference is benign; 2) preferential programs may only reinforce common stereotypes; and 3) there is a measure of inequity "in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making" (Regents of the University of California v. Bakke 307).
Davis claimed that on several occasions the Court had approved preferential classifications without applying the most exact scrutiny. However, Powell says that these cases in school desegregation, employment discrimination, and sex discrimination were materially different from the current case. The school desegregation cases involved clearly determined constitutional violations; the employment discrimination cases involved direct discrimination by the respondent; and the sex discrimination cases are characterized by Powell as unlikely to result in the analytical and practical problems found in the type of preferential program under discussion. Powell thus rejects the argument that there are precedents for this sort of case.
Powell further concludes that selecting candidates strictly on the basis of race or ethnic origin "must be rejected not as insubstantial but as facially invalid" (Regents of the University of California v. Bakke 310) and as forbidden by the Constitution. Powell also notes that the State does have a legitimate and substantial interest in eliminating the effects of discrimination, but the question is how is this to be accomplished:
We have never approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations (Regents of the University of California v. Bakke 310).
Powell indeed finds that the setting aside of a certain number of positions for the preferred ethnic groups might contribute to the ethnic diversity sought. However, he says that this is not the only way that such diversity can be attained. The program at Davis focused solely on ethnic diversity, and Powell says this shows that it would hinder and not further the attainment of genuine diversity. Powell objects in particular to the assignment of a fixed number of places for minority group members, a form of quota system. He also objects to making race or ethnic origin the decisive element in admissions. Powell rejects the Davis program as being a preferential program that disregards individual rights as guaranteed by the Fourteenth Amendment.
The decision in Bakke was mixed. Four justices led by Justices William Brennan and Thurgood Marshall voted to approve affirmative action principles as constitutional. Justice Brennan stated that the medical school had a sound reason to believe that the problem of the exclusion of minorities was both substantial and chronic. He refused to believe that the Constitution could act as a barrier to correcting past and current acts of discrimination. Another four justices voted to strike down the specific affirmative action plan as unconstitutional, and while they reserved judgment concerning other affirmative action plans, they still clearly disapproved of this approach to bringing about change. Justice Powell tried to bring a balance between these two groups in his decision, noting that affirmative action was justifiable to promote educational diversity. Powell did find the Davis plan unconstitutional because it employed a quota, but he might uphold a plan that did not involve a numerical quota of the same sort (Wu 64).
Powell's opinion in this case shows the problem facing those who want to correct past racial discrimination and who find it difficult to create a program to accomplish this task while also being constitutional. The opinion points out the basic tensions this sort of effort involves and the kinds of problems it always encounters. The first difficulty is that the discrimination involved was brought about in the past by another generation, and yet it is the present generation that has to correct it in some fashion. Reverse discrimination is raised when a program or policy effectively punishes an innocent party in the present for the guilt of his or her ancestors. Reverse discrimination is a form of discrimination against the majority population in order to eliminate discrimination against a minority.
Such programs have thus tended to create a new form of discrimination to replace the old rather than to create a society without discrimination. Affirmative action is supported on the basis that it is the only way to make up for the discrimination of the past, and some may even openly state that there is a degree of punishment of white society for past wrongs. In truth, there are other means of redress for social institutions that discriminate, with the possibility always held out for change through political action.
The Bakke case is raised in court when similar issues are broached, and a recent case where this is true is that of Hopwood v. Texas (Hopwood v. Texas, 861 F. Supp. 551 [WD Tex. 1994]), which involved a dispute over the University of Texas law school's affirmative-action admissions policy. This case has been characterized as the most far-reaching lawsuit since the Supreme Court's decision in Roe v. Wade (410 U.S. 113 ). In the Hopwood case, a three-judge panel of the Fifth Circuit Court of Appeals ruled that race cannot be a factor in law school admissions. It is believed that unless the Supreme Court reverses the majority opinion, affirmative action will end, though this may not be true. In an analysis by Paul Burka, the writer states that there are two reasons why some form of affirmative action could survive:
1) The decision is too broad and was based on the belief of two of the judges that the 1978 Bakke case which allowed race to be a factor in college admissions only to remedy past discrimination or to achieve diversity is not the law…