The decision of the Supreme Court in Bakke was received by the press and much of the public with great relief, as an act of judicial statesmanship that gave to each party in the national debate what it seemed to want most. Such a sense of relief, however, hardly seems warranted, and it is important to explain why it does not.
Everyone knows something of the facts of the case. The University of California medical school at Davis administered a two-track admission procedure, in which sixteen of a hundred available places were in effect set aside for members of “minority” groups. Allan Bakke, a white applicant who had been rejected, sued. The California Supreme Court ordered the medical school to admit him, and forbade California universities to take race into account in their admissions decisions.
The United States Supreme Court’s decision affirmed the California court’s order that Bakke himself be admitted, but reversed that court’s prohibition against taking race into account in any way. So opponents of affirmative action plans could point to Bakke’s individual victory as vindication of their view that such plans often go too far; while proponents were relieved to find that the main goals of affirmative action could still be pursued, through plans more complex and subtle than the plan that Davis used and the Supreme Court rejected.
But it is far too early to conclude that the long-awaited Bakke decision will set even the main lines of a national compromise about affirmative action in higher education. The arithmetic of the opinions of various justices, and the narrow ground of the pivotal opinion of Mr. Justice Powell, mean that Bakke decided rather less than had been hoped, and left more, by way of general principle as well as detailed application, to later Supreme Court cases that are now inevitable.
Bakke’s lawyers raised two arguments against the Davis quota plan. They argued, first, that the plan was illegal under the words of the Civil Rights Act of 1964, which provides that no one shall “on the ground of race…be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program” receiving federal aid. (Davis, like all medical schools, receives such aid.) They argued, second, that the plan was unconstitutional because it denied Bakke the equal protection guaranteed by the Fourteenth Amendment.
Five out of the nine justices—Justices Brennan, White, Marshall, Blackmun, and Powell—held that Bakke had no independent case on the first ground—the 1964 Civil Rights Act—and that the case therefore had to be decided on the second—the Constitution. They said that the language of the Civil Rights Act, properly interpreted, was meant to make illegal only practices that would be forbidden to the states by the Equal Protection Clause itself. They decided, that is, that it is impossible to decide a case like Bakke on statutory grounds without reaching the constitutional…
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