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The pragmatism of Bakke – affirmative action

This month’s twentieth anniversary of the Supreme Court decision in
Bakke v. University of California is an odd occasion to commemorate.
The Bakke case is the earliest in which the Supreme Court directly
addressed affirmative action. But like much of the affirmative action
debate, Bakke is as symbolic as it is real. Appropriately, given its
resolution at the time, the Bakke case presents multiple meanings today.

Retrospectively, Bakke may represent the beginning of the end for
the civil rights movement because the Supreme Court signaled, at best,
a begrudging acceptance of remedies for racial discrimination that
themselves took race into account. Prospectively, Bakke offers an
opportunity to confront the challenges of achieving racial justice
through pragmatic traditions.

The Court was highly divided over Bakke. It was faced with the
claim of so-called “reverse discrimination” brought by Allan Bakke, a
White, male, thirty-seven-year-old professional engineer whose
application to the University of California-Davis medical school had
been turned down twice. The school had implemented an affirmative
action program only shortly before Bakke challenged it. He alleged he
was excluded due to affirmative action for people of color.

Four justices led by Justices William Brennan and Thurgood Marshall
voted to approve affirmative action principles as constitutional.

Justice Brennan stated that the medical school “had a sound basis
for believing that the problem of underrepresentation of minorities was
substantial and chronic and that the problem was attributable to
handicaps imposed by past and present racial discrimination…. The
practice of medicine in this country was largely the prerogative of

Marshall said, “During most of the past 200 years, the Constitution
as interpreted by this Court did not prohibit the most ingenious and
pervasive forms of discrimination against the Negro. Now, when a State
acts to remedy the effects of that legacy of discrimination, I cannot
believe that this same Constitution stands as a barrier.”

Another four justices voted to strike down the specific affirmative
action plan as unconstitutional. They reserved judgment on other plans,
but their disapproval was apparent. justice William Rehnquist, for
example, would later vote consistently against affirmative action.

The opinion by Justice Lewis Powell offered a balance between these
two groups. Under Powell’s opinion, affirmative action was justifiable
to promote educational diversity.

Powell distinguished between the Davis plan, which fie found
unconstitutional because it employed a quota, and the Harvard College
plan, which he emphasized used race as a single criterion among many

By their very nature as the final results of a lengthy process, the
published opinions of the Supreme Court obscure the background. In the
Bakke case, as with almost all “reverse discrimination” claims, the
defendant would have been forced to admit its own role in the societal
history of racial segregation to justify a program of affirmative
action, As in most instances, however, the University of California
offered a weaker argument. It did not acknowledge the failure of the
public educational system to produce African American professionals,
and it accepted Bakke’s assertion that he was better qualified than
African American students enrolled at the medical school.

After Bakke, the Supreme Court continued to struggle with
affirmative action. In Adarand, a 1995 decision rendering affirmative
action the constitutional equivalent of invidious racial
discrimination, the justices effectively ended the career of Bakke as

Between Bakke and Adarand lies almost a generation of controversy. Time has changed race jurisprudence.

In Bakke, the Court recognized that the real issue was regular racial discrimination.

In Adarand, the Court was much more concerned with the formal logic
of its work. Its explicit themes were “skepticism” toward any “racial
preference;” “consistency” in treating affirmative action like racial
discrimination; and “congruence” between standards for federal and
state governments. Lost is the urgency of responding to racial
discrimination and any sense that it can be attacked systematically.

It is another irony of the affirmative action debate that Bakke
looks relatively progressive now, As other branches of the federal
government, along with various states and private institutions,
consider whether to abolish affirmative action, Justice Powell’s
compromise deserves reconsideration. Although his analysis has been
criticized for many reasons, it reflects an American pragmatism that
has transformed the civil rights movement into mainstream legal reforms.

Only pragmatism will ensure that affirmative action is continued.

Frank H. Wu Associate Professor of Law Howard University

COPYRIGHT 1998 Cox, Matthews & Associates

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