The Bakke Case: Race, Education, and Affirmative Action
reviewed by Edward Taylor - 2002
Title: The Bakke Case: Race, Education, and Affirmative Action
Author(s): Howard Ball
Publisher: University Press of Kansas, Lawrence, KS
ISBN: 0700610456 , Pages: 231, Year: 2000
Search for book at Amazon.com
I live in a state (Washington) that outlawed affirmative action in 1998, by the passage of Initiative 200. Heated debate about this hot topic is now a thing of the past. Forgive me, but a new book about the Bakke case seemed somewhat dated, even moot.
My misgivings turned out to be largely unjustified. In a series edited by Peter Hoffer and N.E. Hull, entitled "Landmark law cases and American society," Howard Ball meticulously, and fairly, traces the legal trajectory of Bakke from its important predecessor, DeFunis v. Odegaard [president of the University of Washington], to its ultimate societal impact as well as the current backlash against affirmative action. Ball, a professor of political science at the University of Vermont, spent five years researching the case, including primary documents, conference session notes of Supreme Court justices and interviews with Chief Justice Warren Burger and the eight associate justices. He also draws from a trove of other sources—newspapers, magazines, books, law review articles, and television coverage.
Ball’s goal is to examine the law and politics of affirmative action in an even handed manner. He wants the reader to not only understand the dynamics of the U.S. Supreme Court, but to also decide whether or not affirmative action has value in higher education, if it has led to significant changes in society, and whether or not it should continue.
What triggered the national obsession with affirmative action, interestingly enough, had nothing to do with race or racial conflict. Rather, for the first time in U.S. history, the number of student applicants to law and medical schools far exceeded the available seats. In 1970, there were over 43,000 applicants for 13,000 medical school seats and 76,000 applicants for the 45,000 slots in law school. Simultaneously, in response to the Civil Rights Movement, Kennedy’s executive order 10925 "to take affirmative action to ensure that applicants are treated fairly," and their own sense of fairness, many universities developed preferential admissions programs to address the reality that the preponderance of admissions to professional school favored, for many reasons, white applicants. As did many, the University of Washington School of Law (UWSL) used the 1964 Civil Rights Act to justify and develop their admissions programs. Hence, two groups of applicants, military veterans and minority group members, were put in a separate screening pool.
By 1971, the UWSL had a record 1600 applicants for its 150 seats. Marco DeFunis, state resident and UW graduate, was twice rejected. He then sought counsel, and brought suit against the preferences given to minorities (not veterans), claiming reverse discrimination.
Slade Gorton (who went on to be a multi-term Republican U.S. Senator) was the state attorney general who argued the University of Washington’s case. Although the School of Law had produced only 12 African American graduates (and 3800 white ones) in its history, Gorton denied that the UWSL had ever ‘deliberately’ discriminated against minority applicants. Nonetheless, he argued, the state had a compelling interest in overcoming the consequences of centuries of discrimination.
The Superior Court of King County was unconvinced, and ordered DeFunis admitted. By the time the UWSL’s appeal reached the U.S. Supreme Court, DeFunis was in his final quarter and the Supreme Court was able to rightly claim it as a moot point. Many court observers, however, recognized affirmative action as a case likely to come up again. Ducking the question only delayed the inevitable.
The inevitable came quickly. Allan Bakke, a long time NASA engineer and California resident, decided at the advanced age (for medical training) of 32 that he wanted to become a doctor. Prior to applying, he inquired about age policy at almost a dozen medical schools. His doubts were confirmed. The University of California at Davis (UCD), his first choice, acknowledged that, in general, if an applicant was greater than 30, they would have to be ‘unusually’ highly qualified. Of note, UCD, in 1973 had 2464 applicants for 100 seats. By the next year, it was 3737.
By 1973, Bakke had been rejected twice by all 11 of the medical schools he had applied to. UCD cited his age (now 33) as his main handicap. In addition, he had applied late—UCD admissions letters had already been sent. His lawyer then wrote to the Chair of the Admissions committee, Dr. George Lowery, claiming that Bakke had a right to register. However, his was not a claim of age discrimination. Rather, it was based on the argument that the admissions program for minorities was an illegal racial quota.
In one of those moments of serendipity that makes Ball’s recounting of Bakke revealing, Dr. Lowery invited Bakke to a meeting with his assistant, Peter Storandt. In Stordandt, Bakke found a like-minded supporter—one that (unprofessionally) told him about DeFunis’ case and encouraged this angry and impatient man to go after the special admissions program.
When Bakke applied the following year, he was described in his personal interview as "limited in his approach, rather rigid" and received the lowest interview score given that year. Rejected again, he followed Storandt’s advice and filed suit.
Yolo County Superior Court agreed with Bakke that UCD’s admissions system operated as a racial quota. But, the Court did not order him admitted, because UCD’s rejection was based on advanced age and poor interview, not race. The California Supreme Court agreed, and ordered Bakke admitted. This order was stayed by U.S. Supreme Court Justice William Rehnquist in October, 1976, and Bakke went to Washington.
In court, UCD admitted that it had set aside 16 of its 100 seats for Hispanic and African Americans. Like the UWSL, it could not justify this quota as a necessary remedy to prior action because it was unwilling to admit to any prior racial discrimination. Rather, the Carter Administration’s Attorney General, Wade McCree, argued that racism was incorporated into the U.S. Constitution in the three-fifths compromise and the Fugitive Slave Act. Attorneys for Bakke claimed that UCD violated Title VI of the 1964 Civil Rights Act and the 14th Amendment’s equal protection clause.
Eight months lapsed between the close of oral arguments and the Supreme Court’s decision. Ball takes the reader through the mechanics of the Court's decision making, showing how each document is negotiated and how surprisingly little personal communication occurs between Justices. Rather, thoughts are written down and then communicated. Thurgood Marshall circulated a particularly effective memo, rejecting the idea of America as a ‘melting pot’ with a ‘colorblind’ Constitution. "Either the Negro did not get into the pot," he proclaimed, "or he did not get melted down. If ‘colorblind’ had been used in Plessy in 1896, we wouldn’t be here."
Harry Blackmun, in particular, was impacted by Marshall’s perspective, and joined to make the Court division four (Marshall, Brennan, White, and Blackmun) who favored affirmative action, against the four (Burger, Rehnquist, Stewart, and Stevens) who opposed it. White, however, advised quiet support for the special admissions programs, "Keep the decibel level as low as possible. We won’t accomplish much by beating a white majority over past ills or by describing what has gone on as a system of apartheid."
Justice Powell issued the compromise position. UCD had denied Bakke equal protection, and he should be admitted. Racial quotas may be justified if there was proof of prior discrimination, but UCD offered no such record. In fact, their colossal blunder had been to pick a number. Finally, race could be a factor in admissions, as in Harvard’s program, which was attached to the document as an example.
As Time magazine summed it, "Quota’s no; race, yes."
Ball devotes the final quarter of his book to Bakke’s impact. Despite Reagan’s contention that affirmative action "is a perversion" and Marshall’s replacement on the Supreme Court by the anti-affirmative action Clarence Thomas (himself an affirmative action admit to Yale School of Law), racially weighted admissions have had a momentous societal outcome. African Americans now constitute 11.9% of students attending institutions of higher education, on par with their percentage of the population. By 1990, African American enrollment in graduate, law, and medical school had reached an all time high, with increases in subsequent years. He notes that Bakke served, intentionally or not, as a ‘how-to’ manual for admissions policy makers that legitimized the use of affirmative action and resulted, to a significant degree, in the emergence of a well-educated African American middle class.
By the late 1990s, however, it began to appear that affirmative action would disappear, not by way of the Supreme Court, but by the ballot. California voted to prohibit it by passing Proposition 209 in 1996; Washington State (with the help of Marco DeFunis, now a practicing lawyer in Seattle) in 1998. Soon after, 11 states had similar ballot initiatives. But, when Ward Connerly took his anti-affirmative campaign to Florida, he got the cold shoulder from Governor Jeb Bush, whose brother’s presidential campaign was eagerly seeking Hispanic and African American votes. Taking the upper hand, Bush issued executive orders ending the use of race in college admissions and state contracting.
In response, policy makers in California, Texas, and Florida have adopted admissions guarantees to the top tier of each high school senior class. Given racial segregation in housing and school attendance, these strategies have seen an increase in minority admissions in Florida, and near pre-Proposition 207 levels in California. One cannot be but gladdened by this development.
Ball concludes with the opinion of Justice Douglass, who in 1971, asserted that the problems of diversity in higher education are problems for educators and school boards, not for federal courts. Bakke, then, has allowed educators to take good faith measures, without using quotas, to ensure that in state-supported institutions, the children of all its taxpayers have a fair chance to attend.
This book should be of value, not only to students of affirmative action history, but to current day policy makers. Not only is the story of Bakke compelling in its own right, but Ball unearths the personal—the anger, bitterness, disappointment, and serendipity—that shapes even ‘principled’ stands. Two shortcomings must be noted, however. Ball describes the significant role of American Jewish groups (American Jewish Congress and many others) in opposing affirmative action without adequate explanation or clarification. Nor does he address why there have been no notable legal challenges against other special admissions policies, such as those for legacies (children of alumni/a, major donors), veterans, women in male-dominated fields, etc. In sum, these ‘set-asides’ far outnumber race-based admits. Why it is assumed that only African Americans are un-deserving remains an unanswered question.