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 [W]hites."

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 factors.

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 precedent.

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

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