The volatile University of California reverse discrimination case before the U.S. Supreme Court has generated more legal briefs from interested parties than any other high court case in at least 20 years, court officials said yesterday.
The 57 friend-of-the-court briefs - of 162 organization and individuals - read like the roll call of the American melting pot. The Sons of Italy, the Polish-American Jewish Committee show up together as pro-Bakke, while the Japanese-American Citizens League and numerous groups representing blacks are representing the other side.
The legal alliances are unique - a measure of how the case twists traditional American political philosophy. The American Federation of Teachers, a union that thinks of itself as liberal, is pro-Bakke. So is the Young Americans for Freedom (YAF), a group that prides itself on being conservative.
The case involves Allan Bakke, a white applicant rejected for admission to the University of California Davis Medical School. Bakke has alleged that less qualified blacks, Hispanics and Asian-Americans were admitted ahead of him under a special quota system.
Ironically enough, the YAF brief is signed by a young lawyer named Marco DeFunis. DeFunis was the plaintiff in the first reverse discrimination case that reached the Supreme Court four years ago; DeFunis, a white, sued the University of Washington law school, claiming he was discriminated against by an "affirmative action" program. But the case became moot before the court could decide it, because Defunis was admitted to the school.
Court officials say they volume of arguments in Bakke has already surpassed that of such recent celebrated cases as the Pentagon papers First Amendment test. It may outstrip that of the historic Brown v. Board of Education case, which set the stage for public school integration. It already is greater than the volume in the death sentence appeals of Julis and Ethel Rosenberg.
Of the briefs filed - some a compendium of the views of several groups or individuals - 41 defend the constitutionality of a university admission system that reverses a specific number of places in each class for members of minority groups, while 16 argu that racial quotas are unconstitutional.
What potentially is the most influential brief has yet to be filed by the Justice Department, which has been struggling with the language of its arguments under intense pressure from civil rights leaders and the administrators of affirmative action plans in a number of federal departments.
Many in the civil rights movement regard the Bakke case as the most important to come before the high court since the Brown case, and have worried publicly that a Justice brief that casts any doubt on affirmative action could set integration efforts back years.
First drafts of the government's Bakke brief clearly challenged the constitutionality of racial quotas. Subsequent revisions are said to strongly support affirmative action programs, while walking the tightrope on the distinction between quotas and "goals."
"The wording will be so critical. Everyone will read into it what they want to see," said one government attorney involved in the case.
The document is expected to be released early next week.
There is little ambiguity, however, in the amicus briefs already on file. But the unexpected contrasts abound.
The American Jewish Committee and the American Jewish Congress argue forcefully that the California Supreme Court decision favoring Bake's claim of reverse discrimination shoul be-affirmed.
However, the American Civil Liberaties Union, whose leadership and membership include a significant number of Jews, takes a firm stand against Bakke.
The Sons of Italy and the Polish-American Affairs Council asserts that racial quota systems provide some minority groups with a remedial admission procedure that has not been available to other minorities.
The quotas also "permit each generation to conclude that the prior generation was disadvantaged and to repair the discrimination by discriminating against members of the current generation," some of the ethnic groups assert.
On the other hand, the Japanese-American Citizens League and the Asian-American Bar Association, argue against Bakke, citing the traditional arguments that affirmative action without reserved places of admission is meaningless.
The American Federation of Teachers support Bakke, while the American Federation of State, County and Municipal Employees opposes him. Both are AFL-CIO unions.
The YAF stand against quotas is no more unexpected than the Fraternal Order of Police opposition. But the briefs by those groups have pushed them into an alliance, of sorts, with numerous Jewish organizations that are perceived by the public to be generally liberal in political bent.
The National Medical Association, a group of 8,000 black physicians, is opposing Bakke's reverse discrimination claim. But the like-sounding National and Dental Association, which comprises Polish doctors, supports Bakke.
Whether the justices of the high court read all those briefs is a matter of conjecture. But, if they do, they will find plenty of historical grist for considering precedent.
Some of the briefs favoring quotas point out that the concept of remedial racial preference can be traced as far back as the Reconstruction Era, when assistance to the emancipated slaves was a prime topic of national debate.
Racial quotas frequently cropped up in the debate over the Freedman's Bill, which Andrew Johnson vetoed, only to have the veto overridden by Congress. The bill, which among other things, created Howard University, ultimately was overshadowed by the 14th Amendment.
The notion of goals to benefit minorities grew out of an executive order by President Kennedy creating a government contract compliance program, in which employers dealing with the government were encouraged to employ blacks. Although it did not deal in quotas, the program marked the first time a policy of affirmative action was embodied in government actions.
The first major flashpoint in affirmative action came in 1969 with the adoption of the Philadelphia Plan, in which the Labor Department set specific goals and timetables for hiring minority workers in federal construction jobs. The government gave contractors three years to bring minority employment up to 20 per cent.
The plan, which was a source of division between civil rights group and the labor movement, was extended to other cities and subsequently reaffirmed as constitutional in a U.S. Court of Appeals test.