Bakke's Wake

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1978

Bakke's Wake Bakke's Wake

Philip B. Kurland

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Recommended Citation Recommended Citation Philip B. Kurland, "Bakke's Wake," 60 Chicago Bar Association Record 66 (1978).

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Bakke's Wake*

By Philip B. Kurland

Some years ago now, James Joycepublished a novel-I think it canbe called a novel-titled FinnegansWake. When I tried to read it, I foundit recondite, cryptic, enigmatic, andobscure. Some time thereafter, a booktitled The Skeleton Key to FinnegansWake was published. But even withthat guide, Finnegans Wake remainedas arcane as ever for me. Probablywhat I need is a Cipher to the Skele-ton Key to Finnegans Wake.

While, unlike with Finnegans Wake,I understand almost every wordof the Bakke opinions in Regents ofUniversity of California v. Bakke, 98S. Ct. 2733 (1978), the meaning as awhole of these judicial efforts remainsrecondite, cryptic, enigmatic, and ob-scure. Of course, unlike the Joyceproduct, which is-I am told-a greatwork of art, the Bakke judgments are-I am told-at best minor worksof judicial statesmanship, sometimescalled politics. And unlike with thenovel, no one has yet ventured tooffer a skeleton key to Bakke. Nordo I.

It may well be that either the Four-teenth Amendment or the Civil RightsAct of 1964 is truly the skeleton keyto the different Bakke opinions; at

*This article is adapted from a talk de-livered in the Distinguished Speaker Programof DePaul University College of Law onAugust 1, 1978, and before the Legal Clubof Chicago on September 18, 1978.

least these are represented by theJustices to be their guides. Or it maybe that most of the opinions aremerely expositions of the personalpredilections of each of the authors,having nothing to do with the intentor function of either Constitution orcongressional legislation.

Before I venture further into thesubject, however, allow me to revealmy bias so that you may discount itas you consider what I say. Withothers, I filed a brief amicus curiaein the Bakke case on behalf of theAnti-Defamation League. In that briefwe asserted that the questions pre-sented to the Court by the case weretwo:

May a State consistently withthe commands of the FourteenthAmendment, exclude an applicantfrom one of its medical schoolssolely on the ground of the appli-cant's race?

May a State consistently withthe commands of the nationalCivil Rights Acts, exclude an ap-plicant from one of its medicalschools solely on the ground ofthe applicant's race?

The relevant provisions of the Four-teenth Amendment read: "No Stateshall . . . deny to any person withinits jurisdiction the equal protection ofthe laws" (emphasis added). The

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HeinOnline -- 60 Chi. B. Rec. 66 1978-1979

Civil Rights Act provision to whichwe had reference was Title VI of the1964 statute, 42 U.S.C. § 2000d, whichprovides:

No person in the United Statesshall, on the ground of race, color,or national origin, be excludedfrom participation in, be deniedthe benefits of, or be subjected todiscrimination under any programor activity receiving Federal fi-nancial assistance. (Emphasis ad-ded.)

We also made reference to 42 U.S.C.§ 1981, which derives from the CivilRights Act of 1866. We offered thisnot so much as a ground for relief,because it was not a part of the ap-plicant's complaint in the Californiacourts, but rather as a more particu-larized statement of the meaning ofthe Fourteenth Amendment. Section1981 provides:

All persons within the jurisdic-tion of the United States shallhave the same right in every Stateand Territory to make and en-force contracts, to sue, be parties,give evidence, and to the full andequal benefit of all laws and pro-ceedings for the security of per-sons and property as is enjoyedby white citizens, and shall besubject to like punishment, pains,penalties, taxes, licenses, and ex-actions of every kind, and to noother. (Emphasis added.)

In sum, this direct antecedent to theFourteenth Amendment provides thatthe black citizens of our nation areentitled to those rights available to

white citizens and should not be sub-jected to greater "punishment, pains,[and] penalties" than white citizens.

The facts, as we saw them, werenot complicated. "It only need besaid that sixteen places in Petitioner'sentering class at the medical school atDavis were closed to [Bakke] and allother white applicants because oftheir race." We thought the questiona narrow one: "The sole question foradjudication . . . is whether such ex-clusionary action by the State of Cal-ifornia on the ground of Respondent'srace is invalid under the Constitutionand laws of the United States?"

We pointed out that certain issuescognate to those in the case shouldnot be the Court's concern in resolv-ing Bakke:

This is not a case concernedwith framing a remedy to right aconstitutional wrong. ...

The question in this case isalso not whether the University ofCalifornia is restricted in its ad-missions standards to such mat-ters as the applicants' MedicalCollege Admissions Test and col-lege record. Nor does the case testthe validity of these criteria asmeasures of potential achieve-ment in medical school or medicalpractice....

Nor is the question in this casewhether the national governmentmay, under certain circumstances,constitutionally indulge, or com-pel states to indulge, racial classi-fications pursuant to Congress'sconstitutional powers, whetherunder Article I, or § 5 of the Four-teenth Amendment, or § 2 of theFifteenth Amendment ....

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This case does not raise thequestion whether a national orstate legislature can, by majorityaction of the relevant legislature,purport to waive the constitu-tional rights of whites to equalprotection of the laws ...

Finally, the question in this caseis not whether a large number ofmedical and law associations andother special interest groups thinkthe departure from the principlesof the Constitution's Equal Pro-tection Clause is desirable ...

Our primary argument was one thatderived from our earlier brief inDeFunis v. Odegaard, 416 U.S. 312(1974), which was recaptured by thelate Professor Alexander M. Bickel inhis posthumously published book, TheMorality of Consent. He wrote:

If the Constitution prohibitsexclusion of blacks and other mi-norities on racial grounds, it can-not permit the exclusion of whiteson similar grounds; for it must bethe exclusion on racial groundswhich offends the Constitution,and not the particular skin colorof the person excluded.

The lessons of the great deci-sions of the Supreme Court andthe lesson of contemporary his-tory have been the same for atleast a generation: discriminationon the basis of race is illegal,immoral, unconstitutional, inher-ently wrong, and destructive ofdemocratic society. Now this is tobe unlearned and we are told thatthis is not a matter of fundamen-tal principle but only a matter ofwhose ox is gored. Those for

whom racial equality was de-manded are to be more equalthan others. Having found sup-port for equality, they now claimsupport for inequality under thesame Constitution. Yet a racialquota derogates the human dig-nity and individuality of all towhom it is applied; it is invidiousin principle as well as in practice.Moreover, it can as easily beturned against those whom it pur-ports to help. The history of theracial quota is a history of sub-jugation, not beneficence. Its evillies not in its name but in itseffect; a quota is a divider ofsociety, a creator of castes, and itis all the worse for its racial base,especially in a society desperatelystriving for an equality that willmake race irrelevant.

Indeed, it may be added, not untilracial categories are obliterated fromour laws can there be even a hopefor the realization of equality in oursociety.

Perhaps because the ThirteenthAmendment was not in issue, we didnot make reference, as we might havedone, to the quotation from Mr. Jus-tice Bradley in The Civil Rights Cases,109 U.S. 3, 25 (1883), which reads:"When a man has emerged fromslavery . . . there must be some stagein the progress of his elevation whenhe takes the rank of a mere citizen,and ceases to be the special favoriteof the laws, and when his rights asa ... man, are to be protected in theordinary modes by which other men'srights are protected." Our reliance,instead, was principally on Sweatt v.Painter, 339 U.S. 629 (1950), which



held that exclusion of an applicantfrom a university on grounds of colorwas a violation of the FourteenthAmendment; on McDonald v. SantaFe Trail Transp. Co., 427 U.S. 273(1976), which held that the CivilRights Act of 1964 protected whites aswell as racial minorities from discrim-inatory treatment; on Lucas v. Forty-Fourth General Assembly of Colorado,377 U.S. 713, 738 n.31 (1964), whichheld that "disparities from population-based senatorial representation" couldnot be justified on grounds that they"were necessary in order to protect'insular minorities' and to accord rec-ognition to the 'state's heterogeneouscharacteristics' "; and on Mr.. JusticeDouglas's opinion in DeFunis v. Ode-gaard, 416 U.S. 312, 342-44 (1974),where he wrote:

The Equal Protection Clausecommands the elimination of ra-cial barriers, not their creation inorder to satisfy our theory as to

how society ought to be orga-nized....

If discrimination based on raceis constitutionally permissiblewhen those who hold the reinscan come up with "compelling"reasons to justify it, then consti-tutional guarantees acquire an ac-cordionlike quality. . . . It maywell be that racial strains, racialsusceptibility to certain diseases,racial sensitiveness to environ-mental conditions that other racesdo not experience, may in an ex-treme situation justify differencesin racial treatment that no fair-minded person would call "invidi-ous" discrimination. Mental abil-ity is not in that category. Allraces can compete fairly at allprofessional levels. So far as raceis concerned, any state-sponsoredpreference to one race over an-other in that competition is in myview "invidious" and violative ofthe Equal Protection Clause.

Chicago Bar Record

PHILIP B. KURLAND is the William R. Kenan,Jr., Distinguished Service Professor at theUniversity of Chicago. He took his A.B. atthe University of Pennsylvania, his LL.B. atHarvard Law School. After serving as lawclerk to Mr. Justice Frankfurter and prac-ticing law in New York City, he turned toteaching. Professor Kurland has been afaculty member at the University of ChicagoLaw School for 25 years. He has acted aslitigation counsel to the U.S. Senate, theIllinois Supreme Court and other public andgovernmental bodies. In 1960 he foundededited the Supreme Court Review. Among hismany published works are Felix Frankfurteron the Supreme Court; Politics, the Consti-tution, and the Warren Court; The Private I;and Watergate and the Constitution.


We argued, too, that racial quotapreferences for blacks were, indeed,invidious in some of their effects onblacks. Professor Thomas Sowell,who is black and can, therefore, saythings that would be deemed hypo-critical coming from whites, haswritten frequently on this point. In1972, he wrote in his book Black Edu-cation, Myths and Tragedies:

What all the arguments and cam-paigns for quota are really saying,loud and clear, is that black peo-ple just don't have it, and thatthey will have to be given some-thing in order to have something.The devastating impact of thismessage on black people-par-ticularly black young people-will outweigh any few extra jobsthat may result from this strategy.Those black people who are al-ready competent, and who couldbe instrumental in producingmore competence among the ris-ing generation, will be completelyundermined, as black becomessynonymous-in the minds ofblack and white alike-with in-competence, and black achieve-ment becomes synonymous withcharity or pay offs.

This attitude is shared by manyblacks. It was not, however, offered forthe proposition that black quotas domore harm than good, but as a rec-ognition that quotas can and do havestigmatic effects on those that theypurport to benefit no less than onthose they condemn.

Finally, if the blacks do not regardthe quota system as adverse to theirinterests, there are large numbers who

are denominated members of the ma-jority who do resent the shift to themof the badges of slavery, not the badgesof slaves but those of slave masters:to be turned out of school places andjobs on the grounds that they wereresponsible-or their ancestors wereresponsible and passed on the liabilityto them-for the slavery that was andis the cause of what has been appro-priately called the "American di-lemma." And so we quoted in ourbrief from Professor Nathan Glazer'sbook Affirmative Discrimination:

The gravest political conse-quence is undoubtedly the in-creasing resentment and hostilitybetween groups that is fueled byspecial benefits for some. The sta-tistical basis for redress makesone great error: All "whites" areconsigned to the same categorydeserving of no special consid-eration. That is not the way"whites" see themselves, or in-deed are, in social reality. Somemay be "whites" pure and simple.But almost all have some specificethnic or religious identification,which, to the individual involved,may mean a distinctive historyof past-and perhaps some pre-sent-discrimination. We haveanalyzed the position and at-titudes of the ethnic groupsformed from the post-1880 im-migrants from Europe. Thesegroups were not particularly in-volved in the enslavement of theNegro or the creation of the JimCrow pattern in the South, theconquest of part of Mexico, or thenear-extermination of the Amer-ican Indian. Indeed, they settled



in parts of the country wherethere were few blacks and almostno Mexican Americans andAmerican Indians. They came toa country which provided themwith less benefits than it nowprovides the protected groups.There is little reason for them tofeel they should bear the burdenof redress of a past in which theyhad no or little part, or to assistthose who presently receive moreassistance than they did. We areindeed a nation of minorities; toenshrine some minorities as de-serving of special benefits meansnot to defend minority rightsagainst a discriminating majoritybut to favor some of these mi-norities over others.

It will be readily seen that a Su-preme Court brief addresses a widevariety of measures. For if the Su-preme Court is a court of law, it isnot only a court of law. It is engagednot merely in resolving a disputebetween the parties but in framingnational policies on a wide variety ofsocial and economic issues. I am notsaying that the latter is a legitimatefunction of the Court. But one wouldhave to be terribly naive not to rec-ognize that what was once called"social engineering" has, since 1954if not before, become the Court's pri-mary role, particularly since Congresshas abdicated its authority and thebureaucracy-usually an ally of thejudiciary-has come to dominatepolicymaking in the executive branch.

So when one addresses an argumentto the Court it is appropriate tojustify an adversary position on thebasis of the original meaning and

intention of the constitutional or stat-utory provision involved; to con-sider the gloss on the Constitutionor statute provided by judicial prece-dents; to point out the political andeconomic and social consequences ofa decision one way or another; and,more subtly, to appeal to the idiosyn-cratic wishes of each of the Justices.

Nevertheless, it must be acceptedthat the briefs and arguments of thelawyers in a Supreme Court caseordinarily have only a peripheral ef-fect on the outcome. They tend, atbest, to provide rationalizations forthe conclusions that the Justices havereached before the briefs are read,thus affecting later cases in lowercourts far more than the SupremeCourt case itself. Judge LearnedHand was wont to advise neophytesthat lawyers seldom win cases at theappellate level, although they fre-quently lose them. He advised fur-ther that more cases are lost by coun-sel talking too much than by counseltalking too little.

Whether the Bakke case was one ofthe very few cases in which the briefsand arguments affected the judgment,we shall never know. There certainlywere enough briefs for each of theJustices to find something he liked inat least one of them, although mostof the briefs merely showed on whichside of the controversy a given judi-cial constituency was to be found.But the outcome of the case does re-veal that the essentially schizophrenicnature of the adversary system pre-ceded, if it did not cause, an essen-tially schizophrenic judgment by theCourt. Perhaps it is Solomonic wis-dom to recommend splitting the babyin half as a means to a just result. It

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is something less than Solomonic wis-dom actually to bisect the infant, asthe Court appears to have done inBakke.

II

The judgment of the Court was an-nounced by Mr. Justice Powell. Hisopinion spoke only for himself, how-ever, except as to Part I, which wasa statement of the facts, and PartV-C, which was a single paragraphthat reads:

In enjoining petitioner fromever considering the race of anapplicant, however, the courtsbelow failed to recognize thatthe State has a substantial inter-est that legitimately may beserved by a properly devised ad-missions program involving thecompetitive consideration of raceand ethnic origin. For this rea-son, so much of the Californiacourt's judgment as enjoins peti-tioner from any consideration ofthe race of any applicant mustbe reversed.

The meaning of the determinativephrase "competitive consideration ofrace and ethnic origin" is somewhatless than pellucid.

There were two conflicting opinions,each of which garnered the votes offour Justices, one attributed to thejoint pens of Justices Brennan, White,Marshall, and Blackmun. (It reads tome, however, as if Mr. Justice Bren-nan was the principal author.) Theother was written by Mr. Justice Ste-vens and joined by Justices Burger,Stewart, and Rehnquist. (Perhaps itshould be noted that the allegedly

monolithic bloc of Nixon appointeeswas split one and one-half to two andone-half, with Mr. Justice Powell af-fording the swing vote for both judg-ments.) Thus, of the 154 pages ofopinions, only the nine pages of state-ment of facts and the one quotedparagraph are entitled to precedentialeffect.

The division of the Court was ac-complished by finding two judgmentsby the California courts where it hadgenerally been believed that only oneexisted. A majority of the Court foundthat the issue made by the facts ofthe case-i.e., whether Bakke was thevictim of invalid racial discriminationby his exclusion from considerationfor any of the sixteen places set asidefor minority applicants-must be re-solved in his favor. It found further,however, that the trial court orderwhich forbade totally the use of raceas a criterion in the admissions pro-cess should be reversed, because racewas not a forbidden classification butonly a highly suspect one.

IIIThe Brennan group sought to cap-

ture the judgment by characterizingits meaning. "Government may takerace into account when it acts not todemean or insult any racial group,but to remedy disadvantages cast onminorities by past racial prejudice, atleast when appropriate findings havebeen made by judicial, legislative, oradministrative bodies with compe-tence to act in this area." This is notwhat Mr. Justice Powell said, how-ever, and the Stevens opinion clearlyrejected this reading.

Like Powell, the Brennan fourthought that Title VI is to be equated

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with the Fourteenth Amendment."Title VI . . . does not bar preferen-tial treatment of racial minorities as ameans of remedying past societal dis-crimination to the extent that suchaction is consistent with the Four-teenth Amendment." "Past societaldiscrimination" is the novation quietlyinserted as a new predicate for re-verse discrimination.

How is this judgment supported?First, by a demonstration that TitleVI and the Fourteenth Amendmentwere both intended to bar discrimi-nation on the basis of race. Whateverinterpretation the Court might givethe Fourteenth Amendment, there-fore, should also be read into the lan-guage of the legislation. Although in1964, when the statute was enacted,there was no reason for Congress tobelieve that the Constitution toleratedreverse racial discrimination, Con-gress, the Brennan four asserted, ob-viously wrote the legislation so thatit would conform to whatever the Su-preme Court might later say that theConstitution meant. In short, the leg-islature was deemed to have writtenopen-ended legislation, the meaningof which was to be filled in, not bythe elected representatives in Con-gress, but by the Supreme Court andthe bureaucracy.

The Brennan group argued thatHEW had, since the enactment ofTitle VI, required reverse discrimina-tion, and Congress surely intended todelegate its lawmaking powers to ex-pert administrative explication. It isassumed by both the Brennan fourand HEW that if there has been ra-cial discrimination against minoritiesby a governmentally funded institu-tion, it must engage in reverse dis-

crimination; if there has been no ra-cial discrimination by the govern-mentally financed institution, it mayengage in reverse discrimination.(Quaere, in light of the finding thatwhites have been discriminatedagainst by the University of Califor-nia at Davis by the quota systembanned by the Court in this case, mustDavis or may Davis now engage inracial discrimination on behalf ofwhites?)

When it turned to the Constitutionwhose meaning is to be read intoTitle VI, the Brennan four startedwith an unchallengeable propositionfrom which it quickly retreated. "Theassertion of human equality is closelyassociated with the proposition thatdifferences in color or creed, birth orstatus, are neither significant nor rel-evant to the way in which personsshould be treated. Nonetheless, theposition . . . has never been adoptedby this Court as the proper meaningof the Equal Protection Clause."

Moreover, if every racial classifica-tion was found in the past to be a"suspect classification" subject to"strict scrutiny"-two code phrasesthat almost invariably led to a findingof unconstitutionality-it seems thatsuddenly "strict scrutiny" is an "in-exact term" that requires redefinition(in light of the result that they shouldlike to reach in this case?). The Bren-nan four were sudden converts to theCourt's earlier 5-4 decision in SanAntonio Independent School Districtv. Rodriguez, 411 U.S. 1 (1973), fromwhich Justices Brennan, White, andMarshall had dissented: that access toeducation is not a fundamental right.Nevertheless, if the old formula re-quiring "strict scrutiny" could not be



invoked on behalf of Bakke, accord-ing to these four Justices, they wouldmake it clear that a mere test ofreasonableness, which would returnthe judgment of the wisdom of legis-lative action to the legislatures, wasnot to be tolerated either.

After a curtsy to the need to avoidstigmatizing or stereotyping anygroup-particularly women; a bow tothe irrelevance of such immutable cri-teria as race, sex, and legitimacy toalmost any legislative classification;and even an acknowledgment of theimportance of individual responsibil-ity and merit: "advancement sanc-tioned, sponsored, or approved by theState should ideally be based on in-dividual merit or achievement, or atleast on factors within the control ofan individual"-the Brennan opinionstrongly concluded that "even if theconcern for individualism is weighedby the political process, that weighingcannot waive the personal rights ofindividuals under the FourteenthAmendment." For which the opinion,mirabile dictu, cited Lucas v. Forty-Fourth General Assembly, supra.

The new standard for measurementof the validity of a racial classifica-tion, for at least the Brennan four-ninths of the Court, is summed upthus:

... because of the significant riskthat racial classifications estab-lished for ostensibly benign pur-poses can be misused, causing ef-fects not unlike those createdby invidious classifications, it isinappropriate to inquire onlywhether there is any conceivablebasis that must sustain such aclassification. Instead, to justify

such a classification an importantand articulated purpose for itsuse must be shown. In addition,any statute must be stricken thatstigmatizes any group or thatsingles out those least well rep-resented in the political processto bear the brunt of a benignprogram. Thus our review underthe Fourteenth Amendment shouldbe strict-not "'strict' in theoryand fatal in fact," because it isstigma that causes fatality-butstrict and searching nonetheless.

Then, without facts, the Courtfound that the legislative body-theadmissions committee and subcom-mittee-had ample ground to believethat there was "minority underrepre-sentation" due to the "handicap ofpast discrimination." The Brennanfour would, therefore, have sustainedthe Davis quota admissions program,but on this point they were a discreteminority. The standard of proof is asmushy as the rest of the opinion:"Such relief does not require as apredicate proof that recipients ofpreferential advancement have beenindividually discriminated against; itis enough that each recipient is withina general class of persons likely tohave been the victims of discrimina-tion." When? Where? By whom? Allappear to be irrelevant questions asthe opinion marches on. For it wouldseem that not history but statisticswill supply the answer. "Underrepre-sentation" is itself proof of discrimina-tion, at least so long as the claim ofdiscrimination does not derive from awhite male or class of white males.

In sum, if you are a member of aracially identifiable minority (or a

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female), you can be, by statute oreven without one, entitled to the priv-ilege of a place within any trade, pro-fession, school, or university, withoutregard to the relative capacities ofyour competition, until such time asthe ratio of the racial minority ap-proximates its ratio to the populationat large or in the pool of applicants,at which time the past discrimination(which need not be defined) entitlesyou only to equality of treatment andno longer to privilege.

This is apparently the collectiveview of the Brennan four.

Individually, Mr. Justice Whitewrote an opinion expressing the viewthat Title VI does not create any in-dividual right of suit. (The Court hasgranted certiorari to determine thisquestion in the case of a female ap-plicant for admission to the medicalschools of the University of Chicagoand Northwestern University.) Mr.Justice Marshall wrote an opinionbased on the revisionist history ofslavery, from which emerges a dutyof reverse discrimination at least infavor of blacks, whatever their indi-vidual heritage or condition. Non-black minorities might find them-selves outside the ken of affirmativeaction programs under this opinion'srationalization. Marshall, incidentally,was of the view that the majority ofthe Court, in Bakke, had in fact de-stroyed the validity of most, if not all,governmental affirmative action pro-grams-a position of dubious merit.

Mr. Justice Blackmun sounds almostapologetic for being found where hewas, but he seems to say that theConstitution may be set aside becausethe problem of a short supply of phy-sicians of minority races is there and

the courts should certainly tolerateany university admissions discrimina-tion that may contribute to an in-crease in their number.

I shall, shortly, examine the degreeto which the Brennan four position issupported by the Powell opinion, butfirst a look at the position of the otherbloc of four Justices as gathered inMr. Justice Stevens's opinion.

IVWhile the Brennan group and Mr.

Justice Powell each took fifty-fivepages to state their positions, the Ste-vens opinion was only fourteen pages-and most of these were coveredwith footnotes. The opinion was shortbecause he thought the issues beforethe Court to be few and narrow:"... the question whether race canever be used as a factor in an admis-sions decision is not an issue in thiscase, and discussion of that issue isinappropriate." Nor was it necessaryto address any constitutional ques-tion, since the case was fully disposedof by resort to Title VI.

On Mr. Justice Stevens's reading ofthe language of Title VI and its leg-islative history, the meaning was clearthat it protected everyone, white orblack or brown or yellow, from dis-crimination on the basis of race byany institution receiving federalfunds. "In unmistakable terms the Actprohibits the exclusion of individualsfrom federally funded programs be-cause of their race. As succinctlyphrased during the Senate debate,under Title VI it is not 'permissible tosay "yes" to one person, but to say"no" to another person, only becauseof the color of his skin.'



According to Stevens, the questionof the right of an individual to invokeTitle VI was not properly before theCourt because the petitioner hadnever raised the issue before. If theissue had to be decided, however-"To date, the courts, including thisCourt, have unanimously concludedor assumed that a private action maybe maintained under Title VI. TheUnited States has taken the sameposition; . . . Congress has repeatedlyenacted legislation predicated on theassumption that Title VI may be en-forced in a private action. The con-clusion ... is amply supported in thelegislative history of Title VI itself."

By way of conclusion, he wrote:"The University's special admissionsprogram violated Title VI of the CivilRights Act of 1964 by excludingBakke from the medical school be-cause of his race. It is therefore ourduty to affirm the judgment orderingBakke admitted to the University."

It was almost as though these fourJustices thought that they were acourt of law and not a continuingconstitutional convention. For theydisposed of a narrow question pre-sented on the facts of the case on thebasis of unambiguous language of acontrolling statute made even clearerby its legislative history. The opinionwas almost unbecomingly modest andsound.

V

Mr. Justice Powell refused to passon the question whether Title VIgave rise to individual suits, becausethat question had not been contestedbelow. He was, however, willing toassume for purposes of the case that

jurisdiction over the Title VI claimwas proper.

He then joined the Brennan four inthe position that Title VI was in-tended to have the same meaning asthe Constitution, even though thiswould result in a new meaning forthe same statutory language everytime the Court amended the Consti-tution by judicial action, as it hasdone so frequently. This conclusionis strange in light of the fact that theCourt, in the past, has found a cleardistinction, for example, between theconstitutional standard and the stat-utory standard of Title VII; e.g.,Washington v. Davis, 426 U.S. 229(1976). Be that as it may, there arenow five votes that the language ofthe 1964 Civil Rights Act means whatthe Fourteenth Amendment's EqualProtection Clause means. Powell,therefore, quickly turned to, andrested on, a constitutional construc-tion.

Powell seems, however, to give tothe Fourteenth Amendment the samereading that the Stevens group gaveto Title VI. Thus, Powell wrote:"[T]he special admissions program isundeniably a classification based onrace and ethnic background .... It issettled beyond question that the'rights created by the first section ofthe Fourteenth Amendment are, byits terms, guaranteed to the individ-ual. They are personal rights.' . . .The guarantee of equal protectioncannot mean one thing when appliedto one individual and something elsewhen applied to a person of anothercolor. If both are not accorded thesame protection, then it is not equal."

Powell then rejected the essence ofthe Brennan group theory. He said,

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in effect, that there can be no suchthing as a benign racial discrimina-tion, making reference here to thelanguage I quoted earlier fromBickel's Morality of Consent. And herejected both the notion that there isa simple white majority and the no-tion that the sins of the fathers shallbe visited on their children unto thethird and fourth generations. Hewrote:

The concepts of "majority" and"minority" necessarily reflect tem-porary arrangements and politicaljudgments. As observed above,the white "majority" itself iscomposed of various minoritygroups, most of which can layclaim to a history of prior dis-crimination at the hands of thestate and private individuals.Not all these groups can receivepreferential treatment and cor-responding judicial tolerance ofdistinctions drawn in terms ofrace and nationality, for then theonly "majority" left would be anew minority of White Anglo-Saxon Protestants. There is noprincipled basis for decidingwhich groups would merit"heightened judicial solicitude"and which would not....

Moreover, there are seriousproblems of justice connectedwith the idea of preference itself.First, it may not always be clearthat a so-called preference is infact benign. . . . Nothing in theConstitution supports the notionthat individuals may be asked tosuffer otherwise impermissibleburdens in order to enhance thesocietal standing of their ethnic

groups. Second, preferential pro-grams may only reinforce com-mon stereotypes holding that cer-tain groups are unable to achievesuccess without special protec-tion based on a factor having norelationship to individual worth.• . . Third, there is a measure ofinequity in forcing innocent per-sons in respondent's position tobear the burden of redressinggrievances not of their making.

Thus, Powell rejected the notionthat the cases invoking racial classi-fication for purposes of remedying aparticular racial discrimination wererelevant here. For this reason, itwould be inappropriate to read Bakkeas damning all "affirmative action"programs. Those addressed to a par-ticular remedy for a particular stat-utory or constitutional violationwould seem to be condonable underBakke. It was Powell's conclusionthat the classification undertaken bythe University of California was asuspect classification and must bejustified where a white was discrimi-nated against in the same terms asprior decisions had demanded justi-fication where blacks were the victimsof discrimination. This the universitycould not do:

If petitioner's purpose is to as-sure within its student body somespecified percentage of a par-ticular group merely because ofits race or ethnic origin, such apreferential purpose must be re-jected not as insubstantial but asfacially invalid. Preferring mem-bers of any one group for noreason other than race or ethnic

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origin is discrimination for itsown sake. This the Constitutionforbids.

If the university could not affordbenefits to a racial group becausethey were a racial group, Powell said,neither could they justify a goal of"remedying the effects of 'societaldiscrimination,' an amorphous conceptof injury that may be ageless in itsreach into the past." Particular statu-tory or constitutional violations maybe redressed. But the university couldnot make such findings of constitu-tional or statutory violations. It wasnot competent to do so.

Hence, the purpose of helpingcertain groups whom the facultyof the Davis Medical School per-ceived as victims of "societal dis-crimination" does not justify aclassification that imposes disad-vantages upon persons like re-spondent, who bear no responsi-bility for whatever harm the ben-eficiaries of the special admissionsprogram are thought to havesuffered.

The university's argument that itsought minority students in order toenhance the medical services thatwould be delivered to minority anddeprived patients (a dubious equa-tion) simply was not demonstrated onthe record. "Indeed, petitioner hasnot shown that its preferential classi-fication is likely to have any signi-ficant effect on the problem."

Powell's opinion then took a strangeand wonderful turn. Pointing out thatthe university claimed the right toselect its own student body, Powellagreed that "[t] he freedom of a uni-

versity to make its own judgments asto education includes the selection ofits student body." That argument waslikely to prove too much, however, forif the university's discretion was un-limited, then the concept of academicfreedom would permit exclusion aswell as admission on racial grounds.Therefore: "Although a universitymust have wide discretion in makingthe sensitive judgments as to whoshould be admitted, constitutionallimitations protecting individualrights may not be disregarded."

Diversity of student population is avalid state interest. But "[t] he diver-sity that furthers a compelling stateinterest encompasses a far broaderarray of qualifications and character-istics of which racial or ethnic originis but a single though important ele-ment. Petitioner's special admissionsprogram, focused solely on ethnic di-versity, would hinder rather than fur-ther attainment of genuine diversity."

Thus, race is not a totally irrelevantfactor in a university's admissions pro-gram. But, said Powell, this propo-sition is not a means for providing anevasion of the principles that he hadstated to this point:

It has been suggested that anadmissions program which con-siders race only as one factor issimply a subtle and more sophis-ticated-but no less effective-means of according racial prefer-ence than the Davis program. Afacial intent to discriminate,however, is evident in petitioner'spreference program and not de-nied in this case. No such facialinfirmity exists in an admissionprogram where race or ethnicbackground is simply one ele-



ment-to be weighed fairlyagainst other elements-in theselection process.

It was here that Powell insertedparagraph V-C, which, with theBrennan four position, called for thereversal of the injunction entered bythe district court against any use ofrace in the admissions process.

The Powell opinion, therefore, af-fords little support for the Brennanposition. On the major issue-whethermere membership in a so-called racialor ethnic minority constitutionallyjustified a privilege or preference by astate or federal governmental agency-there was a clear majority of fivein opposition. On the alternate ques-tion-whether race can ever be afactor in conferring a benefit or priv-ilege-there was a clear majorityholding that it may, at least if therewere a constitutionally justifiable rea-son for it; here the reason was "aca-demic freedom."

V1

The Bakke case was, and is, a vic-tim of what we have come to call, inthe course of our destruction of theEnglish language, "hype." It was over-played by the press and various in-terest groups before judgment as themost important case that the Courtwas called on to decide since DredScott made the Civil War inevitable.On the day the decision came down,it was played in the press and overtelevision like the attack on PearlHarbor. Certainly, by now, it shouldbe realized that the case will haveno broad consequences, except a de-cided increase in the amount of lit-igation. It has opened issues rather

than foreclosing them. Nor will ithave the significance of Brown v.Board of Education, which gave anew and fundamental shift to themeaning of our Constitution. Forneither the Powell opinion, announc-ing the judgment of the Court, northe Brennan-White-Marshall-Black-mun opinion, nor the Stevens opinionis in any way authoritative. We areleft, rather, with an opened Pandora'sbox, from which nothing has yetemerged except noises suggesting thatit does indeed contain some frightfulills. But we should remember that,with all the ills of mankind that Pan-dora's box contained, there was alsoto be found in it Hope.

The only result certainly to bebrought about will be that universityadmissions programs based on fixedquotas, like those at the University ofCalifornia at Davis, will be aban-doned. But there weren't very manyof these to begin with. The same re-sults in terms of minority admissions,however, are likely to be broughtabout by indirection. Most universi-ties and their professional schoolsnow have admissions policies inwhich the discretion of the admis-sions officers is controlling; each de-cision is an ad hoc one. That discre-tion includes a consideration of theuniversity's interest in enhancing thestudent enrollment with minority stu-dents. That tendency is certainly notlikely to be diminished by the Bakkejudgment.

Indeed, the critical issues in "re-verse discrimination" are not reallyto be found in the voluntary effortsof employers or universities to en-large the proportion of minorities inemployment or classrooms. The pri-

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mary difficulties arise from legislativeor constitutional mandates for reversediscrimination, particularly underTitles VII and IX of the Civil RightsAct of 1964. The principal questionwill be what proof shall be requiredof the existence of antiminority dis-crimination as a trigger for remedialreverse discrimination. And here wehave little to rely on in the Bakkeopinions. An extension of the Stevensbloc reading of Title VI to the othertitles of the Act would suggest theneed for fairly stringent proof to in-voke a racial standard. The Brennangroup would apparently require noproof of discrimination: sufficient forthem that the person to be preferredis a member of a racial minority.Powell's opinion really affords littleguidance, for he would seem to say

that the quantum of proof should bemeasured in each case according toits facts.

It turns out, then, that there reallyis no Bakke's Wake. The funereal cer-emonial that is a wake is unnecessarybecause Bakke is in need of christen-ing and growth rather than burial.And unlike the wake of a ship,Bakke leaves no smooth waters im-mediately behind it, only some flot-sam and jetsam that will prove adanger to future, but different, caseswhich are certain to track its course.Bakke will prove to be a much-citedcase, but rather for the dicta containedin the various opinions than as aprecedent for anything.

I wonder whether I should reach asimilar conclusion if I were to try toreread Finnegans Wake.



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Bakke's Wake

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