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.
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.