When the Supreme Court acts on the case of Allan P. Bakke sometime between tomorrow and the end of its term later this month or early next month, it probably will set the stage for disposing of a half-dozen other important, but relatively obscure cases that also involve affirmative action plans or other related issues.
For the court to cluster related cases in a holding pattern, and do so without announcement, is routine; it happens every term.
The Bakke case arose from a program adopted by the University of California Medical School at Davis that set aside 16 of 100 places in each freshman class for blacks, Hispanics and other racial minorities.
Bakke applied for admission in 1973 and 1974, was rejected both times, and sued the university. The California Supreme Court agreed with him that the school had turned him away solely because he is white, in violation of the guarantee of equal protection of the laws in the 14th Amendment to the Constitution.
The university took the case to the U.S. Supreme Court. Without explanation, after hearing oral argument in October, the court directed lawyers for the university, Bakke and the government to file written briefs "discussing Title VI of the Civil Rights Act of 1964 as it applies to this case."
Title VI says, "No person . . . shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance." Such assistance went to the California school.
On its face, Title VI protects a white person against discrimination. The equal protection clause of the 14th Amendment is not only much less specific, but also was adopted in 1866 to protect the civil liberties of Negroes newly freed from slavery.
But the Supreme Court has yet to decide whether Title VI authorized Bakke to file a private suit to enforce it. He says it did. So did the lower court that tried his case. So did the Justice Department, although it also says that the university was free to adop "any minority-sensitive program that is consistent with the 14th Amendment." In contrast, the university told the court that Title VI gave Bakke no right of private action.
Along with Title VI, other issues in the case, such as the relevance, if any, of the special admissions program to other affirmative action plans, bear directly or indirectly on litigation in the Bakke holding pattern.
Among the three most important cases, one involves a requirement in the Public Works Employment Act of 1977 that 10 percent of the billions of dollars of grants made under the law be spent for "minority business enterprises," meaning ventures at least 50 percent owned by blacks, Hispanics, Orientals, Indians, Eskimos or Aleuts.
Last November, in a Los Angeles case involving building contractors, U.S. District Court Judge A. Andrew Hauk ruled that the requirement violates the 14th Amendment, Title VI and national policy.
Disagreeing with rulings by three federal judges elsewhere, Hauk wrote that "affirmative action and goals are permissible; race quotas are not. It is as simple as that."
He contrasted the extensive legislative history of Title VI, which a civil rights coalition had fought for, with the history of the employment law's "race quota" provisions, saying that behind them lies only "the debate rhetoric of a partisan who sponsored" them. Rep. Parren J. Mitchell (D-Md.).
In a brief in the Supreme Court, the Justice Department said that the court "may wish to hold this case pending the disposition of Bakke," because the constitutional questions are "sufficiently related."
The department suggested the same possibility to the court in a case in which Geraldine G. Cannon blames sex discrimination for the denial of her applications for admission to the University of Chicago Medical School.
This case involves Title IX, the 1972 amendment to the civil rights law barring sex discrimination by educational institutions receiving federal funds.
Whether Title IX makes a private right of action available in order to help implement its goals "is an important issue that this court should resolve," Solicitor General Wade H. McCree said in a brief.
He noted that Title IX "was avowedly based upon Title VI," which several judges have interpreted to provide for private suits. Not among those judges were those of the 7th U.S. Circuit Court of Appeals, which ruled against Cannon.
Another factor is the Civil Rights Attorneys Fees Act, a 1976 law authorizing courts to grant fees to attorneys whose clients prevail in suits to enforce civil rights laws - including Titles VI and IX. "Supporters of the bill assumed that a private right to action existed," McCree said.
The court has neither granted nor denied review in the Cannon case in the 3 1/2 months since the department filed its brief, indicating that it will dispose of the case in the light of whatever it does in the Bakke case.
Another case that may be in the Bakke cluster involves what U.S. District Court Judge A. Leon Higginbotham Jr. has termed the "largest and most impressive civil rights settlement in the history of this nation."
The settlement, which he made into a court decree, was between the government and the American Telephone & Telegraph CO.AT&T agreed to accept and implement a government: instigated affirmative action plan setting goals and timetables for preferential entry-level hiring and for promotions and transfers. The ultimate goal is a balance in the racial, sexual and ethnic composition in Bell System facilities everywhere.
Higginbotham approved the plan in 1973. It expires next Jan. 17. The Communications Workers of America and other unions - bargaining agents for 730,000 telephone workers - petitioned for Supreme Court review last Oct. 19. This was six months after the 3rd U.S. Circuit Court of Appeals upheld the decree, and seven days after the Supreme Court heard oral argument in the Bakke case.
Even as of eight months ago, the CWA said in its petition, thousands of arbitration cases arising under the plan were being held in abeyance pending disposition of the litigation.
Calling the plan "reverse discrimination," the CWA charged that it is a wholesale override of "the seniority rights of employes under a bona fide collective bargaining agreement" and "offensive to the union."
The government disputed this, saying that the override "is restricted to those situations where a particular work unit has not complied with its goals and timetables" and is "carefully fashioned" and "entirely proper."
The CWA also termed the override a violation of the 14th Amendment's guarantees of due process of law and equal protection, and "an improper and illegal device to remedy the effects of past discrimination."
The appeals court acknowledged that "the use of employment goals and quotas admittedly involves tensions" with the amendmen. "But the remedy granted by the District Court is permissible because it seems reasonably calculated to counteract the detrimental effects of a particular, identifiable pattern of discrimination . . ."
Few have attached to the special admissions program in the Bakke case such labels as "carefully fashioned" or "reasonably calculate."
Although set up for the disadvantaged, a category not limited to racial minorities, the program barred whites altogether. The rationale for reserving for the minorities 16 slots, rather than some other number, is unclear in the record.
In 1973 and 1974, the years of Bakke's rejections, Asian Americans admitted into the medical school numbered 18 in the regular program and five in the special program. "It is not clear from the record why Asian-American persons are included in the special program," the Justice Department says.
Because fo such factors, the department, in a brief last September, told the court that the record "is plainly insufficient to permit the formulation of detailed principles that would undermine the constitutionality of the many other federal and state programs that take race into account in various ways and for various purposes."