Race and Ethnicity in Higher Education
Since Bakke

Time Magazine called it "the most important civil rights case in a generation." Newsweek predicted it would have "more impact on equality for minorities, for women and, of course, for white males than any judgment since Brown v. Board of Education," and warned that it could "gut affirmative action programs nationwide."

Regents of the University of California v. Bakke seemed the favorite topic for the news media when the case came before the US Supreme Court in October 1977. Despite threats over its consequences, however, Bakke failed to have the profound effect many had forecast.

The ruling did not "gut affirmative action." Rather, affirmative action has remained viable in college and university admissions, as well as in employment, since the Supreme Court rendered the Bakke decision in June 1978.

Why, then, did Bakke fail to live up to its potential? Does it have any significance in the law of affirmative action? How is it relevant to current legal battles over diversity in higher education?

The Bakke Case

Allan Bakke had been an honor student in college and, later, a space-agency engineer before he decided, at age 32, to become a medical doctor. He applied twice for entry to the medical school at the University of California at Davis; the school denied his application both times. Bakke later learned that his college grades and aptitude test scores were higher than those of others who had nevertheless gained admission. The reason for his rejection, Bakke concluded, was that he was white, while some of the successful applicants were not.

The medical schools admissions procedures included a quota system for applicants who were members of "minority groups": Blacks, Hispanics, Asians, and American Indians. A specified number of spots in every entering class were reserved for such applicants; the school admitted some members of the minority groups even though their grades and test scores were lower than the cutoff applicable to non-minorities.

Bakke sued the University of California, claiming violation of his rights under both Title VI of the Civil Rights Act of 1964 and the equal protection clause of the fourteenth amendment to the US Constitution.

By the time Bakke's case reached the US Supreme Court, nearly 60 organizations had submitted amicus curiae, or "friend of the court" briefs, court pleadings filed not by the parties to the lawsuit, but by various groups interested in its result.

Ultimately, five members of the nine-justice Court found the medical school's quota system unlawful. While a majority of the Court agreed upon such a judgment in Bakke's case, however, no majority could agree upon an opinion (a statement by the Court expounding on the law and detailing reasons for the judgment).

That a decision of the US Supreme Court includes no majority opinion is unusual; typically, a majority of the Court can reach a consensus on the reasons underlying a judgment. As the Justices could not agree on a majority opinion, Bakke did not come to be the conclusive statement on so-called "reverse discrimination" many had expected.

While Bakke offers no majority opinion, an opinion by Justice Powell "announced" the judgment of the Court. Accordingly, his views are most often quoted as legal authority on three issues surrounding affirmative action admissions policies in higher education:

1. Diversity. Justice Powell found a diverse student body to be a "constitutionally permissible goal for an institution of higher education," and declared that "the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples."
2. Racial and ethnic quotas. Justice Powell rejected quotas, however, as a means of achieving diversity; he termed such a mechanism "facially invalid."
3. "Preferring members of any one group," Justice Powell wrote, "for no reason other than race or ethnic origin is discrimination for its own sake."
4. Race as a factor in admissions. Quotas, according to Justice Powell, are not a "necessary means" to diversity among students at a college or university. Rather, race or ethnic background could be deemed a "'plus' in a particular applicants file."

"The file of a particular black applicant" he wrote, "may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism."

Diversity on Campus

Though not coauthored by a majority of the Supreme Court, Justice Powell's opinion in Bakke has guided institutions of higher education in the crafting of their affirmative action enrollment policies. While quotas are generally disfavored, race and ethnicity have been approved as valid, but not decisive, factors in admissions.

Perhaps the most fundamental holding to result from Bakke has been Justice Powells statement that diversity among a student population is a legitimate and desirable goal. On March 18, 1996, however, the US Court of Appeals for the Fifth Circuit defied that holding in the most notorious lawsuit over affirmative action in higher education since Bakke.

The case is Hopwood v. State of Texas, a challenge by four white applicants who were denied admission to the University of Texas School of Law. The schools affirmative action policy prescribed different grade and aptitude, test requirements particularly for black and Mexican/American applicants. Under the policy, a black or Mexican-American applicant could be virtually assured acceptance with scores that, if presented by a white applicant, likely would result in denial of admission.

The Hopwood plaintiffs, as Bakke, claimed violations of their rights under Title VI and the equal protection clause. The Fifth Circuit Court, an appellate division of the federal system comprised of Texas, Mississippi, and Louisiana, ruled in the plaintiffs favor. The Hopwood court doubted the significance of Justice Powells opinion (most notably, his approval of racial and ethnic diversity in higher education), remarking that his "view in Bakke is not binding precedent on this issue." It further held, however, that "the classification of persons on the basis of race for the purpose of
diversity frustrates, rather than facilitates, the goals of equal protection."

Last July, the US Supreme Court denied the University of Texass request that it review the Court of Appeals ruling in Hopwood. Thus, while the Hopwood decision is binding in Texas, Mississippi, and Louisiana, it is not necessarily the law in the rest of the country.

The news medias forecasts regarding Bakke prove the need for caution in predicting Hopwood's importance. Most colleges and universities likely will, at least for the time being, continue to follow the reasoning Justice Powell suggested in Bakke. The twenty year span between Bakke and Hopwood does attest, however, to the continuing furor over affirmative action in higher education, as well as to the difficulty of race and ethnic based classifications in academic programs.

Published in the Fall 1996 Edition of In Brief