Forty Years of Bakke

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Professor Theodore M. Shaw
Professor Theodore M. Shaw
Forty years ago, on June 28, 1978, the U.S. Supreme Court decided Board of Regents of the University of California v. Bakke. Having just completed my second year of law school, I was in the Supreme Court when the decision was announced. I would spend much of the next forty years as a civil rights lawyer fighting to defend the Bakke decision, even though I left the Supreme Court that day devastated by what I believed was a loss for African Americans. I still believe that today.

Allen Bakke, an unsuccessful white applicant to the Medical School at the University of California at Davis, challenged the school’s admissions program. Cal-Davis sought to increase the medical profession’s low number of minority physicians by adding sixteen reserved seats to its entering class of eighty-four.

The Supreme Court fractured, rendering a 4-1-4 decision, with Justice Lewis Powell writing an opinion that bridged two radically different views of constitutional application. Four justices would have ruled that under the Fourteenth Amendment, voluntary efforts to open higher educational opportunities to African Americans and others were benign in intent and should be constitutionally permissible. Four other justices believed that all race-conscious measures were presumptively unconstitutional regardless of intent. Justice Powell provided the fifth vote to strike down the Cal-Davis Medical School’s admissions program and agreed with the four who believed that all race-conscious governmental measures were legally suspect, but he declined to rule that all race-conscious considerations were unconstitutional. Powell wrote that colleges and universities had a First Amendment interest in academic freedom that allowed limited consideration of race in pursuit of diversity among admitted students. For the next thirty years, pursuant to this rationale upholding race-conscious efforts to admit minority students, Bakke was interpreted to allow colleges and universities to seek racial diversity in its classes.

However, colleges and universities did not begin to admit black students after they awakened to the educational benefits of diversity. They began to undertake affirmative efforts to enroll black and brown students in order to remedy and to turn the page on the long history of discrimination. Yet, in Bakke the Supreme Court effectively abandoned the remedial imperative. In doing so the Court refused to acknowledge the original dual purposes of the Fourteenth Amendment; while the Amendment by its own terms guaranteed equal protection of the laws and due process to all persons, its original and primary purpose was the legal protection of African Americans. The same Thirty-ninth Congress that adopted the Fourteenth Amendment enacted a series of race-conscious measures specifically aimed at providing African Americans equality under law and the fullness of opportunity.

Powell’s opinion further created a category of discrimination called “societal discrimination”, for which no one is responsible and for which there is no remedy. After Bakke, institutions like Cal-Davis were forbidden from undertaking deliberate efforts to remedy the effects of racial discrimination they themselves did not cause. In sum, only that racial inequality traceable to proven acts of discrimination can be reached by law, and even then, it is largely impermissible to engage in remedies that consciously consider race. The cure cannot consider the illness because the diagnosis is equated with the malady.

For twenty-five years colleges and universities admitted students pursuant to Bakke’s diversity rationale while opponents of diversity and affirmative action fought to overturn the decision.  The Court has heard additional challenges to diversity efforts, and challenges to admissions at the University of North Carolina and Harvard are currently pending. While diversity has become a touchstone of American law and culture, those who believe that black and brown students are unqualified for admission to selective colleges and universities have never abandoned their efforts to bar higher educational institutions from conscious efforts to admit them.

Because Bakke’s diversity rationale belonged to educational institutions under the First Amendment, and the Fourteenth Amendment imperative was abandoned, the voices of African Americans and other people of color have been marginalized or excluded in the legal struggles that have followed. They have been denied the opportunity to argue before the Court. As a result, the cases concerning admission of black and brown students are controlled by the largely white administrators of colleges and universities and unsuccessful white applicants.

For forty years the Supreme Court has repeatedly upheld Bakke’s diversity rationale, in which I believe. But I believe just as much, if not even more, in the compelling need to pursue educational opportunities for African Americans and other people of color at selective colleges and universities from which they were excluded for so long. I believe that institutions should be able to act affirmatively to promote equality of opportunity, and that there is no symmetry, moral or legal, between race-conscious efforts to include individuals from groups that have suffered discrimination, and race-conscious efforts to subordinate and exclude individuals based on beliefs in inferiority and superiority.  Bakke got diversity right, but it got the Fourteenth Amendment wrong.

Theodore M. Shaw is the Julius L. Chambers Distinguished Professor of Law and Director of the Center for Civil Rights at the University of North Carolina School of Law.


Posted by Theodore M. Shaw (Ted) on Fri. June 29, 2018 2:53 PM
Categories: Education, Race Discrimination
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