If the long opinion written by Justice Powell in the Bakke case were truly “the judgment of the Court,” then I believe there would be grounds for satisfaction among those of us concerned to protect individual rights and to constrain the growing tendency of government and private institutions alike to act on the basis of a person’s race and ethnicity. But how can we have any great confidence in the staying power of an opinion written by a single Justice, and requiring, to become the judgment of the Court, four Justices to uphold the first of its two key parts, and four other Justices to uphold the second? To make matters worse, the four Justices who uphold Bakke’s right of admission stand on much narrower ground than the four who would have denied him admission, and who wish to go much further than Justice Powell in legitimating the use of race and ethnic criteria. And to make matters still worse, all the nine Justices agree that deference is due to existing legislation, and the executive and administrative action that implements it—action which has already saddled us with many requirements to take race and ethnicity into account.
These, it seems to me, are the troubling problems that remain even after Justice Powell’s opinion—an opinion that I would find consistent with the Constitution, with the broad and sound range of sentiment among the American people-both black and white—as to the kind of society they want, and with the common sense that should guide us in dealing with racial and ethnic diversity.
In reviewing the California Supreme Court’s decision in the Bakke case, Justice Powell upheld that part of its judgment declaring the admissions program of the University of California Medical School at Davis to be unlawful. One group of four Justices—Burger, Stewart, Rehnquist, and Stevens—concurred in this, but did not subscribe to Justice Powell’s reasoning. On the other hand, Justice Powell reversed the California Supreme Court’s ruling that race cannot be given “any consideration” in the admissions process. Another group of four—Brennan, White, Marshall, and Blackmun—concurred in this, but again their reasoning was very different from Justice Powell’s. What weight therefore Justice Powell’s opinion, standing as it does on this razor’s edge, will have in the future, when similar and related cases must be decided, is uncertain.
Justice Powell begins with a review of the facts in the case. Neutral and straightforward though this account is, it nevertheless raises two questions, which unfortunately play no part in the opinion but have to be taken into account in a broader examination of the problem of the judicial role in our educational institutions, and the adequacy of those institutions themselves.
First, the admissions process of the University of California Medical School at Davis has been subjected to an examination so searching that in itself it seems—to a non-legal mind—to constitute an excessive degree of interference in the operations of what should be an independent and autonomous institution. Undoubtedly educational institutions, and particularly those that take money in one form or another from the federal government (as almost all do), are not entitled to as much protection as we grant religious institutions, or purely private social institutions, or the family. Yet having personally been involved in admissions processes in different departments in two universities, I am made uneasy when a complex enterprise involving many factors must be dissected, explicated, and justified to a court. We live in a society in which all action, it seems, must be laid fully bare, legally defended. But with what effect on what should be subtle and balanced judgments?
I do not think government is improved when everything is done in the expectation that correspondence and conversations and notes will be subjected by hostile persons to strict and unsympathetic scrutiny. This undoubtedly leads to the practice of “defensive” government, in which actions that should have been taken are not, actions that should not be taken are, in which action is delayed, and in which the costs of action pile up. Similarly, we see the spread of “defensive” medicine to protect against possible malpractice suits. And now we must expect “defensive” admissions and appointments in higher education in anticipation of government intrusion and private litigation. In every field these developments drive out valuable people who will not subject themselves to unfair inquiry, attack, and litigation. I do not have a solution to this problem, and neither does the Supreme Court. Nevertheless I cannot let pass without comment the grotesquely expanded scale of the processes of determining publicly what is fair, and their effect on our institutions and our lives.
In the case of admissions, to be sure, there is an alternative that would obviate such effects: an exclusive reliance on examinations, numbers, scores. This is how it was done when I entered New York’s City College in 1940—no interview, no judgment of my past contributions in high school, or of my future contribution to society; in short, to reverse Melbourne, no damn nonsense about anything but merit, as defined by grades. It is not a bad system: we see it in operation in many countries for the distribution of scarce places in institutions of higher education. And yet undoubtedly we gain something in this country from the fact that every school and every graduate department has its own admissions procedures in which other factors are considered in addition to grades and scores. Can this diversity and the benefits it provides survive rigorous and repeated judicial examination?
If the first question raised by Justice Powell’s review of the facts of the Bakke case asks why the procedures of autonomous institutions should be subjected to such searching examination, the second question concerns the soundness of the criteria used by autonomous institutions. Here is what the Supreme Court tells us about the percentile scores on the Medical College Admissions Test (MCAT) of Bakke and the two groups of regular and special admittees in 1973 and 1974:
|Average of Reg. Admit||81||76||83||69|
|Average of Spec. Admit.||46||24||35||33|
|Average of Reg. Admit.||69||67||82||72|
|Average of Spec. Admit.||34||30||37||18|
One may put aside the verbal and general-information parts of the MCAT as perhaps not directly relevant to medical practice. But the enormous gap between the regular and special admittees in their quantitative and science scores certainly casts serious doubt on whether the special admittees could actually succeed in getting through medical school, and if they did, what their success could possibly mean.
My two concerns are of course in contradiction: I want the courts to keep out of this kind of business, but I want the institutions to act responsibly as educational institutions. (In an earlier case this year, a student at the University of Missouri-Kansas City Medical School was dismissed shortly before she was due to graduate, and the judgment of the Court was to allow the dismissal to stand. I approved the Court’s deference to an autonomous educational institution, but at the same time I was bothered by the possibility of unfairness to the student in question.) But in any event, neither the issue of educational autonomy nor the issue of responsibility played any part in the Bakke opinions.
Part II of Justice Powell’s argument considers whether the provisions of Title VI of the Civil Rights Act of 1964 are applicable: “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.” Is the Civil Rights Act more restrictive in the way it looks upon the use of racial classifications than the Equal Protection Clause of the Fourteenth Amendment (“No State shall . . . deny to any person within its jurisdiction the equal protection of the laws”)? Examining the legislative history, Justice Powell concludes that “Title VI must be held to proscribe only those racial classifications that would violate the Equal Protection Clause. . . .”
Therefore, he engages, in Part II, in a lengthy analysis of the question of whether the Equal Protection Clause protects only blacks or whether it protects everyone. Clearly this is a crucial point, affecting our judgment of the degree to which remedial action for blacks (or other minorities that we consider equivalent to them under the Fourteenth Amendment) may be permitted to harm individuals in other groups. Justice Powell says, first, that even the University of California admits that decisions based on race or ethnic origin do raise questions under the Fourteenth Amendment, and that, on the other side, even Bakke did not argue that “all racial or ethnic classifications are per se invalid.” Interestingly enough, of the four cases that Justice Powell cites to shore up the position that government may under some circumstances take account of race, two came out of the deportation of Japanese Americans from California in World War II and a third is the recent case unsuccessfully brought by the Hasidim of Williamsburg in Brooklyn against an action designed by the New York State legislature to increase the voting power of blacks and which reduced their own voting power. This is not a promising group of cases on which to ground a constitutional right to make racial and ethnic distinction.
Be that as it may, Justice Powell goes on to say that the use of racial and ethnic categories does require “strict scrutiny by courts.” White males are protected by the Constitution, just as blacks are. We cannot set up a “two-class” view of the Fourteenth Amendment, in which persons in some groups are deserving of less protection than others. In the decades after the passage of the Fourteenth Amendment, Justice Powell writes, “the United States had become a nation of minorities. Each had to struggle—and to some extent struggles still—to overcome the prejudices not of a monolithic majority, but of a ‘majority’ composed of various minority groups. . . . As the nation filled with the stock of many lands, the reach of the Clause was gradually extended to all ethnic groups seeking protection against discrimination.” Justice Powell refers to cases protecting Celtic Irishmen, Chinese, Austrian resident aliens, Japanese, Mexican Americans. “The guarantees of equal protection, the Court said in Yick Wo , ‘are universal in their application to all persons within the territorial jurisdiction, without regard to any differences of race, or color, or of nationality. . . .’”
Justice Powell takes a strong line in this section of his opinion. He rejects the argument of the University of California that “discrimination against members of the white ‘majority’ cannot be suspect if its purpose can be characterized as ‘benign.’” And he attacks directly the view of the second group of four (Brennan, White, Marshall, and Blackmun) that only if there is a “stigma” on a group is it covered by the Equal Protection Clause:
The Equal Protection Clause is not framed in terms of “stigma.” . . . The word has no clearly defined constitutional meaning. It reflects a subjective judgment that is standardless. All state-imposed classifications that rearrange burdens and benefits on the basis of race are likely to be viewed with deep resentment by the individual burdened. The denial to innocent persons of equal rights and opportunities may outrage those so deprived and therefore may be perceived as invidious. These individuals are likely to find little comfort in the notion that the deprivation they are asked to endure is merely the price of membership in the dominant majority and that its imposition is inspired by the supposedly benign purpose of aiding others. One should not lightly dismiss the inherent unfairness of, and the perception of mistreatment that accompanies, a system of allocating benefits and privileges on the basis of skin color and ethnic origin.
In attacking the “two-class” theory of the Fourteenth Amendment, Justice Powell takes up a more sophisticated and complex position on the ethnic character of the United States than I have seen before in any opinion of the Supreme Court:
. . . The difficulties entailed in varying the level of judicial review according to a perceived “preferred” status of a particular racial and ethnic minority are intractable. The concepts of “majority” and “minority” necessarily reflect temporary arrangements and political judgments. As observed above, the white “majority” itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the state and private individuals. Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only “majority” left would be a new minority of White Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit “heightened judicial solicitude” and which would not. Courts would be asked to evaluate the extent of prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability would be entitled to preferential classifications. . . . As these preferences began to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence—even if they otherwise were politically feasible and socially desirable.
And Justice Powell goes on to quote at length Justice Douglas’s ringing dissent in DeFunis against the use of racial and ethnic categories.
It is of particular importance, I believe, that Justice Powell has attacked the theory that only stigmatized groups, groups thought inferior, deserve the protection of the Constitution. This theory—recently put forth by Ronald Dworkin in an article on the Bakke case, and also embraced by the second group of four—is remarkably dangerous in a world in which economically and educationally successful minorities have met, in many countries, the fiercest discrimination, going as far as the confiscation of their property and the loss of their lives. Are we to believe that discrimination against such minorities—Jews, for example, or Chinese—is lawful under our Constitution? Have these groups overcome their historic “stigma” just by becoming prosperous? And are minorities alone in bearing a stigma? In many of our colleges and universities in the past decade, not a few whites may well have felt burdened by a “stigma,” and it may have affected them in not inconsequential ways. One can recognize that there is a considerable range in the stigmas borne by various groups, and yet still applaud Justice Powell’s contention that all racial and ethnic discrimination is deserving of “strict scrutiny.”
Having concluded that the Constitution protects all individuals from discrimination on grounds of race and ethnicity, Justice Powell examines the arguments that might justify, even under “strict scrutiny,” the Davis admission program. The language of the Court as to what might justify a “suspect classification”—race—is that “a state must show that its use of the classification is ‘necessary . . . to the accomplishment’ of its purpose or the safeguarding of its interest.” This language, from earlier cases, is not very helpful, but it is all there is. With its’ guidance Justice Powell considers four arguments for the use of racial classifications in medical admissions.
The first is “to reduce the historic deficit of traditionally disfavored minorities in medical schools and the medical profession.” While this may seem an adequate basis for racial classification to some, Justice Powell dismisses it out of hand. The second is to counter the effects of past discrimination. He rejects this too. The state certainly has an interest in overcoming the effects of past discrimination, but in order to use racial classification to do this, there must be “judicial, legislative, or administrative findings of constitutional or statutory violations.” There are none in this case. The third is to increase the number of physicians in underserved communities. Justice Powell here supports the view of the Supreme Court of California that race is no index of where a physician will serve. Finally, there is the argument that racial classification is necessary to attain a diverse student body. This to Justice Powell is a legitimate objective of academic freedom, which apparently is protected in our well-interpreted Constitution under the First Amendment.
But racial classification of the rigid sort practiced by the Davis Medical School, he says, is not the only road to a diverse student body. The state interest involved is not simply in a racially or ethnically diverse student body: “The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. [Davis’s] special-admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.” Justice Powell then goes on to commend the Harvard College admissions program, in which factors like geographical distribution and academic interests are taken into account in choosing students, as well as race.
The troubling problem of the competence of judicial intervention into educational programs is illustrated by the fact that a college admissions program—which inevitably must concern itself with such questions as whether there are enough students to fill the labs, the orchestra, and the athletic teams—is used by Justice Powell as an example of the kind of admissions program that might guide a highly selective professional school. Without going into the questions that might be raised by this distinction, Justice Powell commends the looser Harvard College approach as against the more rigid Davis Medical School quota. He recognizes—as the Brennan group argues—that this is only a more subtle and sophisticated way of taking race into account. But there is a key difference to him between making race the factor and “an admission program where race and ethnic background is simply one element—to be weighed fairly against other elements—in the selection process.”
The Stevens four, who joined with Powell to make possible Bakke’s admission, had no need for such refined analysis. To them, Title VI of the Civil Rights Act of 1964, banning discrimination on grounds of race in governmentally supported programs, was sufficient. It was unnecessary to go into the Constitution, or into issues of when and how race could be used.
It is the distinction, made by Justice Powell alone, between the legitimate and illegitimate use of race in admissions, that dismays those who hoped that the Bakke decision might give a decisive answer to the problem of affirmative discrimination. If race may be “a” factor, may it not covertly be “the” factor? Will not the Davis approach in other guises—e.g., the commended Harvard approach—in effect creep back into the admissions process? Will not a rigid statistical standard, not announced in so many words and numbers, boldly, but held covertly in the minds of an admissions committee, prevail?
Concerned as I am to erect a wall against the use of racial and ethnic categories by government and public institutions, I am nevertheless content with Justice Powell’s position. The argument that it only drives the Davis type of program underground would remain even if Justice Powell had upheld the California Supreme Court in its denial of any role to race or ethnicity. The fact is that in any system that goes beyond test scores and grades it is impossible for racial and ethnic considerations not to play a role in admissions, whatever the Supreme Court may say. These considerations played a role before the rise of statistically based affirmative action, at a time when it was still illegal in many places even to seek information as to race and ethnic background. Colleges and professional schools sought diversity, or sought for members of given minority groups. This was not the only criterion, of course, but it was often a factor in making up a class.
And, indeed, how could it not be? If one took as relevant to the composition of a class geographical representation, representation from small undergraduate schools and large ones, a range of interests in the sub-parts of the field, how could one totally rule out racial and ethnic background in a country in which these are dominant social forces? To exclude constitutionally any consideration of these factors would inevitably lead to their being considered covertly.
There are two arguments for the position taken by the Supreme Court of California that considerations of race and ethnicity must be totally excluded. One is the constitutional and statutory argument: this is what the Constitution says we must do; this is what the law, as passed by Congress, says we must do. It is the position I myself would like to hold. Certainly it is the way I read the Constitution, and the way I read the Civil Rights Act of 1964. Unfortunately it is not the way a majority of the Supreme Court reads the Constitution, at least for the moment.
But even more damaging to this position, it is not the way the Congress is willing to read its own legislation. Congress had the opportunity, in 1972, when revising sections of the Civil Rights Act of 1964, to make it absolutely clear that the original legislation meant what it said when it prohibited racial preferences because of a statistical “imbalance” in employment. Congress refused to take this opportunity. Since Justice Powell leans heavily on statutes, on the intention of Congress—as do the Stevens four which supported him on Bakke’s right to admission—it is particularly damaging to the future stability of their position that Congress has been pusillanimous in asserting that it would not stand for racial and ethnic tests in federally funded programs. Quite the contrary, as the Brennan four point out, Congress has mandated them in at least one important program. In 1977, it required that 10 per cent of grants for local public-works projects should be spent for “minority business enterprises,” defined as businesses 50 per cent of which are owned by “Negroes, Spanish-speaking, Orientals, Indians, Eskimos, and Aleuts.”
The Brennan four write of this act of Congress (a challenge to which, incidentally, the Supreme Court refused to review a few days after the Bakke decision):
What is most significant about the congressional consideration of this measure is that although the use of a racial quota or “set-aside” by a recipient of federal funds would constitute a direct violation of Title VI if that statute were read to prohibit race-conscious action, no mention was made during the debates in either the House or the Senate of even the possibility that the quota provisions for minority contractors might in any way conflict with or modify Title VI. It is inconceivable that such a purported conflict would have escaped congressional attention through inadvertent failure to recognize the relevance of Title VI.
Even worse, in another section of the public-works act with its minority set-aside there is a provision barring discrimination on the basis of sex which provides that it should be enforced “through agency provisions and rules similar to those already established, with respect to racial and other discrimination under Title VI of the Civil Rights Act of 1964.”
That Congress in 1977 passed this ill-advised legislation does not tell us what congressional intent in 1964 was. But if this intent must be reaffirmed by new congressional action, in the face of administrative determination to impose racial and ethnic goals and quotas, and in order to guide wavering courts who will give deference to congressional statute, then can we expect such reaffirmation from a Congress capable of passing a bill prescribing racial quotas?
To doubt the viability of the strict line taken by the California Supreme Court is, I realize, tantamount to saying that we are unlikely to get anything better than Justice Powell’s position in the fight against these new benign Nuremberg laws either from the Supreme Court or from Congress. I would hope that the continued exploration and demonstration of the evils of reverse Nurembergism would eventually persuade Congress and the courts—as, according to all the survey data, they have persuaded a huge majority of the American people—that we want no governmentally imposed racial and ethnic classifications, and that state judgment, and the judgment of institutions that carry a state interest, must be based on individual, not racial and ethnic, grounds. Thus, an exploration of how the 10 percent set-aside has been administered—the fact that businessmen have to show their minority credentials to be “accredited,” that corruption and deception are fostered, that waste is encouraged, that successful minority businesses are not in fact made this way, and that those which are set up by protected government contracts will be blown away in any light wind—might dissuade Congress from trying to deal any further with ethnic and racial problems by means of such crude requirements.
There is a second, more substantial argument in favor of the Supreme Court of California’s total prohibition on the use of race. If we want a society in which individuals are treated as individuals by public bodies, and as far as possible in private life, without regard to race and ethnicity, then we cannot get there by allowing or prescribing public action in the opposite direction, even on a temporary basis. These measures will not be temporary, as the Brennan four hope, since those who profit from racial and ethnic distinction will not easily give up their benefits. And there will always be some statistic to point to that will justify continued preferential treatment.
The difficulty of determining a standard for ending affirmative discrimination is well illustrated in a section of the Brennan opinion which points out that the Davis 16 percent quota is lower than the proportion of blacks and Chicanos in California (22 per cent). The Brennan opinion did not bother to look into the distribution of these groups by age (how many are in the 22-26 year range which typically encompasses medical school?), or by percentage of college graduates, or by percentage of college graduates with minimal science and math, all of which might demonstrate, in direct opposition to the Brennan group’s reasoning, that the 16 percent quota is much too high, and leads to the admission of students with the lamentably low scores that Justice Powell reported.
The statistical standard also leaves in silence the fate of groups, like the Japanese and Chinese, who are simultaneously “overrepresented” in relation to their proportion of the state population, and are eligible for quota admission. Thus, Asians, 4 per cent of the population of California, were 9.5 per cent of those admitted under the regular program to Davis in 1971, 13 per cent in 1972, and 15.5 per cent in 1973, and yet were eligible under the special-admissions program (just as “Orientals” are included in the 10 percent set-aside). If “proportionateness” is the standard, even a rough proportionateness, then groups like the Jews, drawn to medicine, adept at science and math, motivated to become doctors, will suffer, while others less suited by training or motivation will become doctors because quotas make it easier for them.
Despite these and other powerful substantive arguments against “any consideration” of race and ethnicity, I believe we must accept Justice Powell’s position. In a multi-ethnic society, while we would not want government to prescribe the degree of such considerations by imposing quotas and goals, we would want individuals and institutions to take these factors into account voluntarily and by their own lights. In a typical example, we would not want government to require a balanced ticket, but we would want the good sense of political leaders to operate so that all groups get political representation. In other fields, we all accept programs with the same objective. Our various work programs address themselves not only to the poor and the unemployed, but to blacks, Mexican Americans, Puerto Ricans. Our various minority recruiting, tutoring, and assistance programs address themselves not only to those outside the normal channels of recruitment and the under-prepared as such but to specific racial and ethnic groups.
By not drawing a “fence around the law,” Justice Powell left open many difficult decisions. How will institutions and individuals differentiate between race as “the” factor and race as “a” factor? He recognizes this problem and quotes Justice Frankfurter: “A boundary line is none the worse for being narrow.” Alas, the problem is more difficult than mere narrowness. Thus, critics of Justice Powell’s distinction assert it will encourage litigation. It will. But the only decision that would have discouraged litigation is one which simply accepted racial quotas. Ruling out race entirely would not have discouraged litigation, for many would have claimed—and I am sure justly—that it had been a factor.
Justice Powell ends with a plea that is surprising—that we have more trust in the good faith of institutions: “. . . a court would not assume that a university, professing to employ a facially nondiscriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary in the manner permitted by our cases.” And here he refers to a case in which the Supreme Court has accepted the good faith of a suburban community in denying permission to build a low-income housing project (Arlington Heights v. Metropolitan Development Corp.), and a case in which a test that selected low proportions of blacks for the police force was accepted as legal (Washington v. Davis). Whether we can hope for trust in “good faith” in a society in which so many people do not believe in the good faith of government, so many government administrators do not believe in the good faith of our educational institutions and businessmen, and so many patients do not believe in the good faith of doctors, is doubtful. Litigation there will be. Still, the distinction Justice Powell draws is a fair one, and if litigation is needed to refine it further, so be it.
Yet one looks forward with some trepidation to how the Court will refine it. Four members would accept quotas, with no safeguards. The four who voted to admit Bakke were not overly articulate in developing their position. But all three parties—Justice Powell, who wrote for himself alone, the Stevens group, and the Brennan group—told us clearly that congressional statutes, and executive and administrative findings and regulations, would receive their deference and play a major role in how they interpreted the legality of quotas and goals. Is this not the key signal that the Court has given us? Those of us who oppose rigid goals and quotas as a travesty of what America is supposed to be and wishes to be have nothing to hope for from the Carter administration and its bureaucratic appointees. But there is still the Congress, still responsive to public opinion, and capable of being troubled by the use of racial and ethnic categories to govern state action.
It is there, in the Congress, that we should seek for a sharper and clearer statement, spelled out so that administrators and courts will have no alternative but to follow it, that no American may be discriminated against on grounds of race and ethnicity.