IT CAN BE FOOLHARDY to predict how the Supreme Court will rule in a case, let alone in the immensely controversial "reverse discrimination" case it will hear on Wednesday: The Regents of the University of California v. Allan Bakke. But it is not impossible to anticipate some of the constitutional roads the High Court will likely travel in reaching its decision, some of the precedents it may bump into, some of the turns it will likely take.
The university's effort to prove that its Davis medical school's special admissions program for disadvantaged racial minorities didn't violate the rights of a twice-rejected white applicant has, of course, raised monentous issues, and much will depend on how the Supreme Court defines the questions at stake. But the heart of the issue is whether the 14th Amendment's guarantee of "equal protection of the laws" permits a person's skin color alone to influence or determine his treatment in professional school admissions and - if the court chooses to extend the implications - in other areas as well.
The first thing to be said is that it would be surprising if the Supreme Court were to find that race can play no role at all in school admissions or in public policy generally. This view is shared by other constitutional lawyers. Gerald Gunther of Stanford, for example, remarks, "My guess is that the court will say something about race being permissible under the proper circumstances," and UCLA's Kenneth Karst comments, "I can't imagine the court saying that race is invariably illegitimate."
Back in 1896, in his famous dissent from the doctrine permitting "equal but separate" accommodations for white and black trolley passengers in Louisiana, the first Justice Harlan stated, "Our Constitution is color-blind and neither knows nor tolerates classes among citizens." Nearly 60 years later, following the Supreme Court's landmark Brown v. Board of Education ruling outlawing state-imposed school segregation, many Americans looked to the day when people indeed would not be judged at all by their color.
As time passed, however, it became apparent that in fashioning remedies to give effect to Brown, federal courts would have to make conscious use of race. In 1971 the Supreme Court, in a unanimous opinion, upheld the use of such racially based remedies as altering attendance zones and busing students beyond their neighborhood schools. In a companion case, the court also struck down a state anti-busing law that had required school boards to be "color-blind" in assigning students. Speaking for an again unanimous High Court, Chief Justice Burger declared: "Just as the race of students must be considered in determining whether a constitutional violation has occurred, so also must race be considered in formulating a remedy."
By that time, however, the notion that race might be used affirmatively in other ways to improve the lot of blacks and other minorities had spread considerably - and with different consequences. Most importantly, the White House had issued an executive order requiring all federal contractors to take positive steps to increase the portion of racial minority group members and women in their work forces.
This order, the basis for Washington's "affirmative action" policies, injected a controversial new issue into federal race consciousness. In school desegregation cases, all children still had access to the public shools. But in hiring, policies, reserving a certain portion of limited jobs for one racial group unavoidably blocked members of another racial group from those jobs. Increasing the opportunities of some diminished the opportunities of others. The Educators' Dilemma
EDECATORS, and particularly those at professioal schools, faced a similar problem - the limited number of seats - when they began searching for ways to increase minority enrollments. Applications to law and medical schools soared during the 1960s. While the schools also expanded, racial minorities nonetheless found themselves facing stiffer competition each year.
It was against this background that the University of California opened its medical school at Davis in 1968. The entering classes for the first two years contained only two blacks and one Chicano, though there were 14 Asian-Americans, members of the most successful educational group in the country. The Davis faculty, eager to increase minority enrollments, set up two different selection committees to pick 100 candidates.
One committee selected 84 regular candidates. The other - composed of faculty members chiefly from racial minorities and students entirely from minority groups - was to choose 16 applicants who intially were described as "economically and educationally disadvantaged." This was changed in the school's 1974 forms, which asked applicants to identify themselves by race and to state whether they wanted to be considered as minority applicants.
In fact, none of the disadvantage white students who applied under the special program was ever admitted. The 132 candidates picked by the special committee over nine years include 50 Chicanos, 46 blacks, 33 Asian-Americans, 1 American Indian, 1 Micronesian and 1 Asian-Chicano.
The stage was set for the Bakke case. When Bakke, a white, applied under the regular admission program in 1973, he rated relatively high under the school's multiple admissions standards. These included undergraduate grades, scores on the Medical College Admissions Test, community involvement, character and other factors determined by recommendations and the important personal interview. But he was rejected. He reapplied in 1974, was turned down again, and took his case to court. The California Supreme Court upheld Bakke's claim that his rights were violated by a program giving "preference on the basis of race to persons who, by the university's own standards, are not as qualified for the study of medicine as nonminority applicants denied admission.
The California court did not say that race could never be the measure of a government program. But it did rule that a racial classification, where it operated to others' disadvantage, must undergo "strict scrutiny" to see whether it serves a "compelling state interest." The court also asked whether there were viable, nonracial alternatives that would serve the state's purposes, which in this case included diversity in the student body and meeting the medical needs of minority communities. Finding that there were alternatives, the court concluded that the university had to consider applicants without regard to race. The Justices' Reluctance
THE U.S. SUPREME COURT has shown a marked reluctance to deal with issues raised by those in Bakke, and therefore there are few clues to its position.
When the court took Marco DeFunis' much-noted challenge to an affirmative action program at the University of Washington's law school, it ended up ducking the issue of entirely in 1974 by finding the case moot; by then DeFunis had been admitted to the school and was about to graduate. That same year the court upheld a job preference given to Indians by the Bureau of Affairs, but it avoided the race question by treating the preference as one "granted to Indians not as a discrete racial group, but, rather, as members of quasi-sovereign tribal entities . . ."
In Bakke , the court could, if it wished, look to the "original understanding" of the 14th Amendment. The NAACP Legal Defense and Educational Fund has argued that while the amendment bars racial classifications that sigmatize any racial group, the amendment's framers intended it to legitimize "benign" race-specific arts aimed at remedying the plight of minorities. There are difficulties, however, with such an approach.
Whatever the original intention, we now have a century of gloss on the 14the Amendment. One recalls how the High Court brushed aside arguments about "the original understanding" in Brown when Chief Justice Earl Warren stated that "we cannot turn back the clock to 1868." And whatever may have been the mood of the Congress more than a century ago, it is hard to escape the present-day reading of the 14th Amendment as embodying the principle that government may not use race or other arbitrary measures to allocate either burdens or benefits.
However it rules, the court in Bakke is hardly likely to be unaware of the dangers of government - Davis, of course, being a state school - using race as the basis of any program. Moreover, calling a program "benign" does not wish away the problem. As the Washington State Supreme Court remarked in its DeFunis decision, "The minority admissions policy is certainly not benign with respect to nonminority students who are displaced by it."
Even for racial minorities who are the intended beneficiaries, "benign" programs may have their ill effects. In a brief filed in the DeFunis case, Philip B. Kurland and the late Alexander Bickel quoted a black law graduate recalling how black first-year law students experienced the fear that "perhaps we were not authentic law students and the uneasy suspicion that our classmates knew we were not, and like certain members of the faculty, had developed paternalistic attitudes toward us." Black economist Thomas Sowell has characterized calls for quotas as saying "that black people just don't have it, and that they will have to be given something in order to have something. Competing Minorities
RACIAL PREFERENCES also raise of how to justify preferring some races or ethnic groups and not others. How extensive may a preference be? How many places in an entering class may be earmarked for members of a given race? Or, if race is simply a preferred factor without places being reserved, how much weight should be given to race as compared with other factors?
By what standard does one decide when a racial or ethnic group is to be preferred? In Bakke, for example, the Justice Department's own brief supporting the university says, "It is not clear from the record why Asian-American persons are included in the special program. There is no doubt that many Asian-American persons have been subjected to discrimination" but "the available evidence suggests that Asian-American applicants are admitted in substantial numbers even without taking special admissions into account. In 1973, 13 of the 84 regular admissions places in the class were filled by Asian-American students, although no more than 6 per cent of the young college graduates in California are Asian-American."
The consequent proliferation of demands by competing minorities is not fanciful. It has been reported that in 1972 minority law student caucuses at Berkeley sought, in total, about hald the entering places for minority students. Each group apparently used a different population formula to support its case - blacks looking to national figures, Chicanos to California demography, and Asian-Americans to population in the San Francisco Bay area.
Racial preferences clearly risk exacerbation of racial resentment. White ethnics who feel shunted aside in the competition for society's rewards are not likely to appreciate seeing places they seek in professional schools being set aside for racial minorities. Constitutional interpretations cannot turn on public opinion - the old saw about the court follwing the election returns notwithstanding - but it is nevertheless significant that in a March, 1977, Gallup Poll 83 per cent of the people interviewed opposed preferential treatment in higher education.
All in all, there is considerable force in Prof. Bickel's statement - he was speaking of racial quotas - that "its evil lies not in its name but in its effect; a quota is a divider of a society, a creator of castes, and it is all the worse for its racial base, especially in a society desperately striving for an equality that will make race irrelevant." Such a view led Justice William O Douglas, one of the court's most liberal justices and the one to speak to the merits in DeFunts, to conclude that "whatever his race. [DeFunis] had a constitutional right to have his application considered on its individual merits in a racially neutral manner."
Given the inherent dangers of government using race as a measure for its actives, the justice in Bakke will certainly feel some yearning for laying down a flat rule that race is simply not a relevant criterion for determining admission to a medical school, even though other measures, such as disadvantage, might be permissible. The Court's Special Obligation
WERE BAKKE to be decided on abstract principle alone, the yearning for a color-blind society might be the end of the matter. But the justices are likely to be very much aware of the social impact of what they do.
The Supreme Court always has been aware of its special obligations in race cases. In the Warren era, the justices were sensitive to the court's position of moral leadership, taking care, for example, to present a unified face in Brown . The present court continues this awareness.When it held last year that federal civil rights statutes prohibited a private school from denying admission on the basis of race, the newest member, Justice Paul Stevens, thought the result turned on cases that had been incorrectly decided in the past but that the court should stick with those precedents rather than take what would look like "a significant step backwards."
The court in Bakke certainly will hesitate to adopt a position which would result in law and medical schools again becoming the virtually all-white enclaves they were before affirmative-action programs were created. For example, a study released in May by the Educational Testing Service, which administers the Law School Admissions Test, concluded that if law schools ignored race in reviewing applications, a majority of the blacks and Chicanos now admitted would be excluded. The percentage of blacks among first-year law students, it said, would drop from the current 5.3 per cent to between 1 and 2 per cent, Chicanos from 1.36 per cent to between 0.4 and 0.8 per cent. No Evidence of Discrimination
IF A COURT MAJORITY did want to permit universities to continue preferential admissions programs, one avenue would be to view them as a remedy for previous discrimination, as in school desegregation cases. In Bakke , however, the record is bare of any evidence that the medical school at Davis ever discriminated.
Lacking such findings, those supporting the Davis plan portray it is a response to discrimination on some larger scene. The NAACP argues that Davis' program is a remedial response to historical de jure segregation in the California public schools. The Law School Admissions Council notes that of black students who graduated from American high schools in 1972 (the group that would have been applying to graduate or professional schools in 1976 about 75 per cent had attended public shool in districts where there had been unlawful segregation.
The University of California paints with an even broader brush. It sees the harmful effects of segregated education as only part of the problem. Pointing to the "much more pervasive pattern of discrimination against minority persons in this country, "it maintains that "growing up black, Chicano, Asian, or Indian in America is itself an experience which transcends the particular fact of segregated education" - and hence one that a professional school is entitled to take into account when passing on admissions applications. Aside from the case possibly turning on previous discrimination, an important precedent favoring Davis' side is the Supreme Court's decision last March that New York State acted constitutionally when it used racial considerations in drawing legislative district lines to comply with the Voting Rights Act of 1965. Over the objections of a community of Hasidic Jews which had been split by the newly drawn lines, Justice Byron White concluded not only that race can be a permissible factor in districting and apportionment, but also that the use of race "is not confined to eliminating the effects of past discriminatory districting or apportionment."
But while there are decisions the court can draw on if it chooses to rule against Bakke, none of those precedents fits the present case perfectly. As previously stated, the school desegregation cases could be distinguished not only on the ground that they were responses to proved, state-supported discrimination, but also on the ground that every student still had a place in the school system, whereas Bakke was denied admission altogether. Similarly, in the New York districting case nobody was deprived of the right to vote or of the right to have his vote count the same as any other voter.
If the justices do not rule out race altogether, they will have to decided by what standard a program using race is to be judged. Where race is used to the disadvantage of blacks or other minorities the universally accepted rule is one of "strict scrutiny." By that test, a classification based on race is struck down unless it serves a "compelling state interest" and unless there is no viable nonracial alternative to accomplish that end.
Both the University of California and some of its supporters argue that "strict scrutiny" is inappropriate in passing on Davis' special admissions program. They contend that where the majority is acting to prefer minorities, members of the majority have adequate recourse to political remedies. This is to say, in effect, that if Bakke is agrieved, he can tell it to his state assemblyman.
It is doubtful that the court will take such a monolithic view of white America. In a highly pluralistic society, it is not self-evident that white ethnic groups, themselves often the victims of societal discrimination, all have equal access to political remedies. In any event, the difficulties of deciding what is "benign" and what is not, and the dangers lurking in any conscious use of race for state purposes, surely will bring the court to decide that some rigorous standard of scrutiny must be applied when state universities prefer one applicant over another on racial grounds.
Assuming strict scrutiny or some comparable standard, will the court find a "compelling state interest?" justifying the use of a racial measure? The numerous briefs in Bakke amply document the lack of black and other minority doctors and lawyers. The 1970 census showed that only 6.002 or 2.1 per cent, of the nation's doctors were black. In 1970, minorities blacks included were even more sparsely represented among lawyers. The need for better health care and legal services in minority communities is likewise readily documented.
The justices are not likely, however, to endorse the notion that minorities are entitled to something like a proportionate share of the country's doctors and lawyers. A state policy of black doctors for black patients would surely be highly suspect - certainly not a compelling state interest. The court is apt to find persuasive the point urged by Justice Douglas in DeFunis: "The purpose of the University of Washington cannot be to produce black lawyers for blacks, Polish lawyers for Poles. Jewish lawyers for Jews, Irish lawyers for Irish. It should be to produce good lawyers for Americans . . ."
This does not mean that the court might not find some other compelling state interest. Several have been suggested in the Bakke briefs, among them the educational value of a diverse student body, the benefit of minority professionals as role models for aspiring minority youths, and the pursuit of and integrated society with social mobility for racial minorities.
Assuming the justice do find a compelling state interest, there is still the question of whether those goals can be pursued by some nonracial alternative. This is the question on which the California decision in Bakke turned. The California court ruled that the university had not shown that its basic goals - integrating the student body and improving medical care for minorities - could not be substantially achieved through other means. It suggested such alternatives as giving sympathetic treatment to applicants of all races who have overcome heavy disadvantages, undertaking aggressive recruiting of disadvantage students, providing remedial schooling and increasing the size of medical classes. Alternative Called "Nonsense"
DAVIS AND ITS SUPPORTERS insist, however, that the alternatives suggested by the California court are illusory. Most of the argument is about whether shifting to "disadvantage" as a ground for preference would produce a substantial number of minority students. Davis insists it would not. While a larger proportion of blacks and Chicanos than whites are in the lower income brackets, in absolute numbers poor whites greatly outnumber minority poor. The Law School Admissions Council estimates that if 15 per cent of law school seats were set aside for economically disadvantaged candidates, 90 per cent of the low-income seats would be filled by whites.
Whether professional schools have even tried to use disadvantage as a measure, let alone found it not to work, is a matter of some dispute. A Western law professor calls the California court's alternatives "nonsense," but several members of major law faculties say they can think of no law school that has tried the disadvantage approach. Several medical educators say the same of medical schools.
Empirical evidence showing how special admissions programs based on disadvantage rather than race would affect minority enrollments at medical and law school is hard to come by. A committee at Boalt Hall, the University of California at Berkeley's law school, surveyed law school across the country in 1976. The committee concluded that "there is no real body of experience in dealing with a disadvantagement approach to special admissions in law schools - and, for that matter, in other schools as well . . . And no law school seems to have figured out the relationship, if any between a disadvantagement approach and the expansion of the number of racial minorities at the bar."
The court's ruling also may turn in prat on assumptions the justices make about the role of courts in resolving social issues, a question not peculiar to race cases.
Several members of the court, including the Chief Justice and Justice Lewis F. Powell and William H. Rehnquist, repeatedly have cautioned against judges stepping in to settle social controversies which might be left to the political process or to other bodies. This notion underlay the court's June decisions holding that states may refuse to fund elective abortions. Justice Powell, writing for the majority, saw those cases as presenting "policy decisions of the widest concerns" that should be resolved "through the normal processes of democracy" and not by the court.
This hesitancy to impose a judicial solution is yet stronger where the evidence is not in on how alternative approaches to a tough social issue would work. When the court in 1973 refused to use the equal protection clause to require states to equalize spending among rich and poor school districts, Justice Powell observed that those who had studied the problem had found "no clear or dependable answers." Lacking sure guidelines, he preferred to leave the school funding problem to continued local experimentation rather than to impose a constitutional solution.
Where the court goes in Bakke also may be influenced by the extent to which the justices view admissions policies generally, and affirmative action specifically, as best left to educators. The Burger court has shown a tendency not to want second-guess those who set educational policy. In the school financing decision, the majority observed, "We are unwilling to assume for ourselves a level of wisdom superior to legislators, scholars and educational authorities" in the several states.
Where educational decisions involve race, the court of course takes a closer look. Even there, however, Burger court decisions reflect a sense that judges are not very good at making educational policy. Thus the Chief Justice's 1974 opinion overturning a lower court's order requiring cross-district school busing in metropolitan Detroit stressed the "deeply rooted" tradition of local control of education.
University faculties jealously guard their traditional area of autonomous judgment about educational policy. Their autonomy often has to yield to other people's judgements - for example, legislators' preferences for seeing that state residents fare better in getting spaces at state universities. Bakke's lawsuit represents, of course, a significant incursion on faculty notions of who should be admitted to professional schools and on what grounds. Breathing Room THE COURT MAY DECIDE that less deference is owed to policy judgements made by a university faculty than to decisions of a legislative body. Legislators are accountable to constituents, faculties are not. Moreover, the justices may perceive a difference between judgments about curricular or grades, matters especially bound up with educators' expertise, and the setting of overall admissions policy, a decision ultimately about the allocation of scarce resources.
Yet law and medical faculties have done as much thinking about the needs and justifications for affirmative action in the professions as has anyone. In light of the thorny dimensions of the problem and the Burger court's hesitance about "constitutionalizing" areas of educational policy, it would not be surprising if the justices in Bakke find some way to give universities breathing room for experimentation.
One possible disposition of the case would be to conclude that Davis has created a racial "quota," that quotas are impermissible, but that universities are free to use race as one factor in admissions. California's Supreme Court decided that Davis' program is indeed "an educational quota system." The university, however, insists that it uses a "goal," not a "quota". It calls the "quota" argument a "red herring."
For allthe talk about "quotas," they are hard to define. If "quota" means a program which assures that all the reserved places will be filled regardless of applicants' credentials. Davis system is not a quota. In that sense, no law or medical school in the country has a quota, for while many students admitted through special programs may have lower numerical qualifications than other applicants, they still must meet minimal qualifications. But if "quota" means setting aside places on a racial basis, it seems clear from the record in Bakke that Davis did use a quota.
It seems to matter what label you use. The American Bar Association disavows support for "quotas" in admissions programs but defends "goals." The Justice Department's brief carefully avoids the quota issue, but an earlier unfiled draft had condemned the use of race as a means of excluding any person from competition for valuable opportunities. Indeed, the government's brief as filed - which endorses "numerical targets" - carries as an appendix a 1973 policy statement by four federal agencies sharply distinguishing between "permissible goals" and "impermissible quotas."
Many scholars do not understand how one draws a constitutional line between goals and quotas. Dean Ernest Gelhorn of Arizona State's law school call the distinction a "chimera," and John Hart Ely of Harvard Law School says he is unable to perceive a constitutional basis for the distinction. Robert O'Neil, vice president of Indiana University's Bloomington campus, suggests that quotas differ in that the place a ceiling on minorities, but that, of course, is not the complaint Bakke has about Davis' program. A Questionable Federal Position
SOME HAVE SUGGESTED various ways the court night narrow the Bakke decision or avoid it altogether. The Justice Department asks the court to decide only one question: whether a state university may take race into account to remedy the effects of societal discrimination. A brief for four private universities (Columbia), Harvard, Stanford, Pennsylvania) defends the Davis program but hopes that, should the court find that plan invalid, it will confine the decision to the particula facts presented and not cast on other, "more flexible" approaches.
The court would have to strain to accept the government's characterization of the record. For example, the government asks that Bakke be remanded so that the state court can determine whether the regular admissions committee at Davis compared all applicants, regular and special. The suggestion that the record is somehow incomplete without further findings on this point is not very compelling in light of the clear fact that 16 spaces were set aside and filled on the basis of race.
There are always ways for the court to duck issues if it is determined to do so. One has the impression that when the court found DeFunis moot, perhaps it was not yet ready to seize the nettle on racial preferences. But three more years have now passed. By now the justices have given further thought to the options open in passing on affirmative action. Few cases have been more thoroughly briefed thatn Bakke . One suspects that this time the justices will be less susceptible to advice on how to avoid a decision.
As with the Brown ruling in 1954, there is a special need for a decision that is seen to rest on principle. It would be helpful if the court could speak with one voice, but some observers are concerned about the chances of a fragmented court. It may well be that the court can largely agree on some fairly narrow disposition of the case, without individual justices developing fuller views in separate opinions.
Whether or not Allen Bakke becomes a doctor, he will take his place in the history books. The court's decision will not settle the issue of affirmative action once and for all. But it will lay down the terms of debate, with profound implications beyond the immediate parties and issues.