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C-SPAN Supreme Court Series: Race and Affirmative Action

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This is the seventh in a series of Politics Daily columns to complement C-SPAN's broadcasts this fall of audiotape recordings of some of the most famous and important Supreme Court oral arguments of the past 50 years. The broadcasts will afford most Americans their first opportunity to hear the actual words spoken by the justices and the lawyers before them in arguments that shaped the laws that have shaped our lives in countless ways. The latest tape in the series, focusing on the regents of the University of California v. Bakke affirmative action case in 1978, will be heard on C-SPAN Radio at 6 p.m. ET on Saturday, Nov. 27. Earlier columns in this series may be found here. Subsequent tapes will be aired each Saturday evening until Dec. 18

The Power to "Act Affirmatively" to "Achieve Equal Opportunity For All"

A white man challenges an official policy he feels is discriminating against him in favor of blacks and other minorities. He sues. The Supreme Court ultimately hears his case. By a 5-4 vote, issued amid great public clamor, the justices disapprove of the policy and give the man another chance to get the post he wanted. At the same time, the Court in a 5-4 vote generally endorses the principles of affirmative action, first proclaimed in the Civil Rights Act of 1964, while also bemoaning the difficulty in establishing workable standards. This is the University of California v. Bakke, decided in 1978. It is also, when you think about it, Ricci v. DeStefano, decided in 2009.

Allan Bakke, who had initially been denied admission to medical school at the University of California-Davis, took the second chance the Supreme Court gave him, reapplied and got admitted to medical school there. He now practices in Minnesota. It is still too early to know what path Frank Ricci's life will take. Like Bakke, Ricci was given a second chance by the court, after he challenged a promotions policy for firefighters in New Haven, Conn. No matter how it turns out for Ricci, the two cases tell us that a full generation's passage of time has not fully settled the matter of when lawful consideration of race turns into unlawful reverse discrimination.

The justices heard arguments in Bakke at the beginning of the October term, on Oct. 12, 1977. They announced their decision in the case on June 28, 1978, at the very end of the January term. Justice Lewis Powell, the swing vote, wrote that the state university's admissions policy violated the Civil Rights Act of 1964 as a racial quota:
"It is evident that the Davis special admissions program involves the use of an explicit racial classification never before countenanced by this Court. It tells applicants who are not Negro, Asian, or Chicano that they are totally excluded from a specific percentage of seats in an entering class. No matter how strong their qualifications, qualitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the special admissions seats. At the same time, the preferred applicants have the opportunity to compete for every seat in the class."
But Justice Powell also saved "affirmative action" from the dustbin of history with the other part of his swing-vote analysis. Even though he believed that the policy U.C.-Davis had used to reject Bakke was invalid, he refused to rule out the validity of all admissions policies which had a racial component to them. School officials, he wrote:
"had very good reason to believe that the national pattern of under-representation of minorities in medicine would be perpetuated if it retained a single admissions standard." Officials "clearly could conclude that the serious and persistent under-representation of minorities in medicine...is the result of handicaps under which minority applicants labor as a consequence of a background of deliberate, purposeful discrimination against minorities in education and society generally, as well as in the medical profession."
When you listen to the arguments, the first thing you'll likely notice is that they are familiar to contemporary ears -- except for the repeated and cringe-worthy use of the words "orientals" and "Chicanos" to describe some of the minorities who were likely to benefit from affirmative action. You will also notice, and be delighted by, the sound of Archibald Cox's voice, arguing on behalf of the school. The former Watergate special prosecutor was one of the greatest lawyers of the 20th century. There is no doubt, in my mind anyway, that his appearance on behalf of U.C.-Davis helped the university's cause -- it could have been worse, in other words, had Cox not argued. The justices knew, and Cox knew, that he could just as well have been one of them had the circumstances been only slightly different.

"There is no racially blind method of selection," Cox told the justices, "which will enroll today more than a trickle of minority students in the nation's colleges and professions. These are the realities" which the school faced when it rejected Bakke, he argued, and the reasons why an affirmative action program was necessary and advisable. Along the same lines, the solicitor general of the United States, Wade McCree, urged the justices to remember that "many children born in 1954, when Brown v. Board of Education [the Court's landmark desegregation case] was decided are today, 23 years later, seeking admission around the country. They are persons who, in many instances, have been denied the fulfillment of the promise of that decision because of resistance to this Court's decision that was such a landmark when it was handed down."

Ronald Colvin argued the case for Bakke. His voice raised, his tone pitched, he almost was yelling at the justices when he tried to personalize the case on behalf of his client: "The name of the game is not to represent Allan Bakke as a representative of a class. We are are not representing Allan Bakke as a representative of some organization. This is not an exercise in a law review article or a bar examination question. This is a question of getting Mr. Bakke into the medical school." In Colvin's view, the university's conduct in the case was deplorable, one false justification for denying Bakke after another. Justice Thurgood Marshall, a former U.S. solicitor general and the first African-American member of the Court, pushed Colvin so hard on the facts that at times it seemed Marshall was prosecutor and Colvin a defense witness. Listen to that exchange carefully. It's fascinating.

I see the Bakke decision not so much as a landmark Court ruling, but more as a milestone along a long path. It begins in 1948 with President Harry S. Truman's decision to desegregate the military. It continues past Brown to Bakke in 1978, exactly 30 years later, and eventually wends its way to the University of Michigan affirmative action cases in 2003 and on to Ricci, decided 31 years after Bakke.
Filed Under: Race Issues, Supreme Court

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32 Comments

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dc walker

When I arrived in Washington in 1966 there were no blacks in offices. Just before I went to Vietnam in 1968 many young black secretaries were brought in. They sent them to class from 9 to 11am to learn skills, etc. When I returned to DC in 1974 there were male and female blacks throughout the building. When I came back in 2000 many had become law enforcement officers in my agency, many with no college education but the desire to learn. Affirmative action helped them, many have now moved to the suburbs, have children who are also benefitting from the guidance of their parents. I was for affirmative action back then but now I just want great schools for everybody of whatever background they come.

November 28 2010 at 9:36 AM Report abuse +2 rate up rate down Reply
vinbob

Who are these elitist Judges that believe they are endowed with social re-construction rights? Yes slavery was wrong, so were many institutions that societies have long ago abandoned. But Affirmative Action has propagated racial resentment and more stereotyping among its victims. It's simply not the American Way.

November 28 2010 at 6:21 AM Report abuse +9 rate up rate down Reply
plazavet

The population of the US is approx. 310,000,000 and the population of African Americans in approx. 41,000,000. Let us speculate that 40% of that number is available for employment in the US so that would leave approx 19,000,000. As far as the male work force lets just say that 20% is in prison for whatever reason some just and some error. That leaves 15,000,000 to compete for employment in the US. Now of that 15,000,000 there are 10%(1,500,000) competing for jobs throughout the US. I would speculate that in every state there are 30,000 people applying for jobs. I would also speculate that 10%(3,000/state) are applying for jobs that have affirmative action implication. Of the 3,000/state there are individuals that fall under the category due to the fact that they are African American not that they are under qualified for consideration. So in actuality there is a small fraction of the African American population really involved in this discussion. If you really consider the actual numbers involved this really is a moot discussion. This issue get much more press than it deserves from a negative perspective. Affirmative action policies should be maintain to keep companies and institutions honest in the effort to offer equal access to all.

November 28 2010 at 12:43 AM Report abuse -9 rate up rate down Reply
ANBA1956

i have never been giving a job because of affirmative action most black people never have i havet is pasted over because of the color of my skin while white people who knew said well that just the way it is i am truly sorry that blacks woman and other minorities have ask you to share power maybe we should wait until you learn what is really right and wrong

November 27 2010 at 11:54 PM Report abuse -8 rate up rate down Reply
MAE

This affirmative action is very degrading for us, the minorities. In any professions we choose, we dont want to be treated as second rate to anyone. We just want fair treatment on application and let our record speak for itself and not our race.

November 27 2010 at 11:14 PM Report abuse +10 rate up rate down Reply
warriorpoet1157

Affirmative action. When you get down to the bottom line it is minority rules. The old adage of hard work and knowledge will get you up the ladder is no more. It's now quotas, percentages, and being PC. Take a look around at all the rules, laws and restrictions out there. They are all there to appease the minorities. From hiring to prayer, education to promotions, its all about making the minorities happy, we do it at the expense of the majority. I read in some of these statements here that if we don't change we will fall behind other countries. Better take a hard look around for we are dead in the water and other countries are sailing around us.

November 27 2010 at 10:11 PM Report abuse +12 rate up rate down Reply
1 reply to warriorpoet1157's comment
christierandall

I still see a lot of racism today...many companies hire based on looks/appearance...the pretty white people..in other words...if your not attractive your out...if you overweight your out....and if your a woman in some cases your out. The white male still dominates the upper corporate levels. They need affirmative action to give those who are not white males a chance.

November 28 2010 at 12:07 AM Report abuse -8 rate up rate down Reply
flyingfortresb17

Affirmative Action has seen it's days. The time for picking the best of the crop is now. Those that cannot compete at the top will get the jobs they are qualified for and the schools they can get into at the rate and level they have achieved. No one is entitled to anything. They either work for it or they don't. I am tired of seeing people who are qualified get passed over for friends and family. I am tired of seeing those who are out of a job being told they are over-qualified, try somewhere else. I am tired of seeing jobs going to people based on if they speak spanish in a retail situation or a delivery situation because the dock workers don't speak english. I believe that every employer who hires someone who speaks only spanish should require that person to learn english. Now companies are hiring "supervisors" who speak spanish to work with those that don't speak english. This is a safety concern. If you are working with someone who does not speak english how are you to tell them that there are dangers they need to understand in the work place. I am tired of seeing youngsters coming into work late or high or sick. Affirmative action has given those that are less informed better jobs and laid off those who can teach the new kid on the block the proper ways to do the work in a language that both understand. Our Justices have cheated two whole generations and caused the United States to go backward not forward. We are not a social experiment. We are not Pavlov's dogs.

November 27 2010 at 9:48 PM Report abuse +18 rate up rate down Reply
Billy

Who gave them lifetime term's?they need to serve two year's on the supreme court instead they have to wear diaper's to go to the bathroom.anybody who think's these judges can't be bought off is not living in reality!that goes for all level's of court's don't let them get comfortable.look at congress living like going to a freaking counrty club every day!over throw supreme court clean house!& now there going to censor what is posted.to protect who?the crooked politician's!

November 27 2010 at 9:30 PM Report abuse +4 rate up rate down Reply
eulerckt

People have to get over the differences. They are many. The important thing is an individual's ability to perform a job. Blatant discrimination is wrong, but so is hiring an under-qualified just to make the stat even out. But....consider..... While the racial breakdown for pro baseball generally represtets the nation-as-a-whole public, what about the NBA and NFL? Should they be required to hire more Hispanics and Asian-Americans and cut African-Americans, or face severe penalties?

November 27 2010 at 9:21 PM Report abuse +17 rate up rate down Reply
John Vilvens

Best qualified no matter there race or gender should be admitted. You want in study and work harder and you will get in. This should apply in hiring and promoting. No matter what you are you work hard and study hard you will get ahead.

November 27 2010 at 8:57 PM Report abuse +19 rate up rate down Reply

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