Regents of the University of California v. Bakke (1978)

    When the Bakke case came to the Supreme Court in 1977, affirmative action was not a new issue. The idea was brought up in the 1960s as a remedy for the harm done by racial discrimination and segregation. Affirmative action programs were aimed to assist African-Americans in getting access to higher education and more desirable and well-paying jobs.

    The main dispute about the legality of affirmative action was between two basic ways of thinking about these programs: whether colleges and universities were admitting selected students or rejecting certain other students based on race. Supporters of affirmative action, such as Marshall, argued that these programs were needed to compensate for the damage done to African-Americans and other minority races by the country’s racist past. Critics of affirmative action claimed that the programs went against the equal-protection clause of the Fourteenth Amendment of the Constitution and the 1964 Civil Rights Act, because they were “race-conscious,” where the Constitution was to be color-blind. Title VI of the 1964 Civil Rights Act said that “no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.”

    Marshall’s response to these critics was that they “just didn’t get it!”¹ He knew firsthand the kind of emotional and economical damage that was done to African-Americans, unlike the other jurors on the Supreme Court did. He believed strongly that these programs were needed desperately to reverse the harm caused by the Court’s ruling almost a century earlier in Plessy, and other cases legalizing slavery and inequality.

    In Bakke, a white student, Alan Bakke, had applied in both 1973 and 1974 to the new medical school at the University of California and was rejected both times, while student’s with lower scores were admitted because they were considered under the minority admissions program. Bakke filed suit in the California courts, requesting that his admission to the school be ordered on the grounds of racial discrimination. The state court declared that the school’s program for “disadvantaged” students was not constitutional, but it did not order that Bakke be admitted to the  school. Both Bakke and the school appealed to the California Supreme Court, which agreed with the lower court’s ruling about the school’s administration but also ordered that Bakke be admitted to the university. The University of California appealed again, this time to the U.S. Supreme Court.

    The case was accepted in February of 1977. Oral arguments began that October, and the justices found that they were split fiercely over the issue. By February of 1978 the case was still undecided. The votes were split four (Chief Justice Buger, Rehnquist, Stevens, and Stewart), one (Powell) to three (Marshall, Brennan, and White). Burger and the other critics were Marshall’s major opponents, because not only were they against all affirmative action, but they did not even wish to address the problem in Bakke; they wanted to focus only on whether Bakke should have been admitted to the university. Powell wanted to address the issue, but felt that the University of California’s program was unconstitutional. At the time, Justice Blackmun was recovering from surgery and had not cast his vote. Tension rose in the Court until Blackmun finally spoke in May of 1978, coming down squarely on Marshall’s side of the vote. In answer to Rehnquist’s idea of an “abstract, rigid world,” Blackmun said, “This is not an ideal world…we live in a real world.”² Since Powell’s ideas were seemingly a compromise between the other two sets of four deeply divided justices, he was assigned the opinion of the case. In the end no majority opinion was released, because his opinion was not agreed to in its entirety by any justice. The final judgment of the Court was released in late June of 1978. Powell agreed with the California Supreme Court that the University of California had to admit Bakke, but said that the university should develop a “less intrusive” affirmative action program.

    Marshall released his own opinion on the case. He was outraged that the same Constitution that had previously allowed laws discriminating against blacks was being used to say that not all affirmative action, a correction for the previous injustices, was not legal.

    In his opinion he detailed the centuries of cruel treatment experienced by African-Americans, from slavery until then present-day America. Although America was a mixture of cultures, he said, “The dream of America as the great melting pot has never been realized for the Negro; because of his skin color, he never even made it to the pot.”³

1 A Defiant Life (p257)
2 A Defiant Life (p265)
3 Warrior at the Bar, Rebel on the Bench (p354)