Diverse presents this exclusive excerpt from Ibram X. Kendi’s book narrating the landmark affirmative action case in 1978, Regents v. Bakke. This excerpt contends that the real tragedy of this famous case and subsequent affirmative action cases has been that the supposed race-neutral admission factors were never on trial for discriminating against Black students. To Kendi, standardized tests have never been racially neutral.
Racist ideas were putting Americans out of touch with reality—as out of touch as one White male aerospace engineer who wanted to be a doctor. Allan Bakke was over thirty-three when the medical school at the University of California at Davis turned him away a second time in 1973, citing his “present age” and lukewarm interview scores as the main factors in the rejection. By then, more than a dozen other medical schools had also turned him away, usually because of his age. In June 1974, Bakke filed suit against the University of California Regents—the body that had fired Angela Davis four years earlier. He did not allege age discrimination. He alleged that his medical school application had been rejected “on account of his race,” because UC Davis set aside sixteen admissions slots out of one hundred for “disadvantaged” non-Whites. Agreeing, the California courts struck down the “quota” and ordered his admission.
The US Supreme Court decided to take Regents v. Bakke. Bakke’s lawyers argued that the quota system had reduced his chances for admission by forcing him to compete for eighty-four slots instead of the full one hundred. The Regents’ lawyers argued the state had a “compelling … interest” in increasing California’s minuscule percentage of non-White doctors. Since they generally received inferior K-12 educations, non-Whites tended to have lower college grade point averages (GPAs) and test scores than Whites—thus the need to set aside sixteen seats. And despite their lower scores, these non-White students were indeed qualified, said the Regents’ lawyers. Ninety percent of them graduated and passed their licensing exams, only slightly less than the White percentage.
The biggest irony and tragedy of the Regents v. Bakke case—and the affirmative action cases that followed—was not Allan Bakke’s refusal to look in the mirror of his age and interviewing prowess. Instead, it was that no one was challenging the admissions factors being used: the standardized tests and GPA scores that had created and reinforced the racial disparities in admissions in the first place. The fact that UC Davis’s non-White medical students had much lower Medical College Admission Test (MCAT) scores and college GPAs than their fellow White medical students, but still nearly equaled their graduation and licensing exam passage rates, exposed the futility of the school’s admissions criteria. Since segregationists had first developed them in the early twentieth century, standardized tests—from the MCAT to the SAT and IQ exams—had failed time and again to predict success in college and professional careers or even to truly measure intelligence. But these standardized tests had succeeded in their original mission: figuring out an “objective” way to rule non-Whites (and women and poor people) intellectually inferior, and to justify discriminating against them in the admissions process. It had become so powerfully “objective” that those non-Whites, women, and poor people would accept their rejection letters and not question the admissions decisions.
Standardized exams have, if anything, predicted the socioeconomic class of the student and perhaps a student’s first-year success in college or in a professional program—which says that the tests could be helpful for students after they are admitted, to assess who needs extra assistance the first year. And so, on October 12, 1977, a White male sat before the Supreme Court requesting slight changes in UC Davis’s admissions policies to open sixteen seats for him—and not a poor Black woman requesting standardized tests to be dropped as an admissions criterion to open eighty-six seats for her. It was yet another case of racists vs. racists that antiracists had no chance of winning.
With four justices solidly for the Regents, and four for Bakke, the former Virginia corporate lawyer whose firm had defended Virginia segregationists in Brown decided Regents v. Bakke. On June 28, 1978, Justice Lewis F. Powell sided with four justices in viewing UC Davis’s set-asides as “discrimination against members of the white ‘majority,’” allowing Bakke to be admitted. Powell also sided with the four other justices in allowing universities to “take race into account” in choosing students, so long as it was not “decisive” in the decision. Crucially, Powell framed affirmative action as “race-conscious” policies, while standardized test scores were not, despite common knowledge about the racial disparities in those scores.
Thurgood Marshall issued a separate dissenting opinion for Regents v. Bakke. The dissenting opinion of Harry Blackmun, the decider in Roe v. Wade, came last. Blackmun gave America a timeless lesson: “In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot—we dare not—let the Fourteenth Amendment perpetuate racial supremacy.” But that was exactly what racists intended to do. Supporters of affirmative action were “hard-core racists of reverse discrimination,” argued Yale law professor and former solicitor general Robert Bork. In the Wall Street Journal, Bork ridiculed the Supreme Court’s decision to keep a limited form of affirmative action. Bork and others like him used the Fourteenth Amendment to attack antiracist initiatives over the next few decades, leaving behind only the wreckage of widening racial disparities. Four years after Regents v. Bakke, White students were two and a half times more likely than Black students to enroll in highly selective colleges and universities. By 2004, that racial disparity had doubled.
Excerpted from Stamped from the Beginning: The Definitive History of Racist Ideas in America by Ibram X. Kendi (Nation Books, 2016). Reprinted with permission from Nation Books.