Following are excerpts from Supreme Court Justice Lewis Powell's opinion in University of California v. Allan Bakke. Justice Powell announced the court's judgment and was joined in part by four other justices.
This case presents a challenge to the special admissions program of the petitioner, the Medical School of the University of California at Davis which is designed to assure the admission of a specified number of students from certain minority groups . . .
I believe that so much of the judgment of the California court as hold petitioner's special admissions program unlawful and directs that respondent be admitted to the medical school must be affirmed . . .
I also conclude that the portions of the court's judgement enjoining petitioner freom according any consideration to race in its admissions must be reversed . . .
The Medical School opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students, a level at which it remains.No admissions program for disadvantaged or minority students existed when the school opened, and the first contained three Asians but no blacks, no Mexican-Americans, and no American Indians. Over the next two years, the faculty devised a special admissions program to increase the representation of "disadvantaged" students in each medical class.
The special admissions program operated with a special committee, a majority of whom were members of minority groups. On the 1973 application form, candidates were asked to indicate whether they wished to be considered "economically and/or educationally disadvantaged applicants; on the 1974 form the question was whether they wish to be considered as "members of a minority group," which the medical school apparently viewed as "blacks," "Chicanos," "Asians" and "American Indians . . ."
Allan Bakke is a white male who applied to the Davis Medical School in both 1973 and 1794 . . . He alleged that the Medical School's special admissions program operated to exclude him from the school on the basis of his race in violation of his rights . . . Scope of Judical Review
En route to this crucial battle over the scope of judicial review, the parties fight a sharp preliminary action over the proper characterization of the special admissions program. Petitioner prefers to view it as establishing a "goal" of minority representation in the medical school. Respondent, echoing the courts below, labels it a racial quota.
This semantic distinction is beside the point; the special admissions program is undeniably a classification based on race and ethnic background. To the extent that there existed a pool of at least minimally qualified minority applicants to fill the 16 special admissions seats, while applicants could compete only for 84 seats in the entering class, rather than the 100 open to minority applicants. Whether this limitation is described as a quota or a goal, it is a line drawn upon the basis of race and ethnic status.
The guarantees of the Fourteenth Amendment extend to persons. Its language is explicit: "No state shall . . . deny to any person within its jurisdiction the equal protection of the laws" . . . The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not accorded the same protection, then it is not equal . . .
Racial and ethnic distinctions of any sort are inherently suspect and thus call for the most exacting judical examination.
This perception of racial and ethnic distinctions is rooted in our nation's constitutional and demographic history. The court's initial view of the Fourteenth Amendment was that its "one pervading purpose" was "the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised dominion over him."
By [the 1930s] it was no longer possible to peg the guarantees of the Fourteenth Amendment to the struggle for equality of one racial minority. During the dormancy of the equal protection clause, the United States had become a nation of minorities. Each had to struggle - and to some extent struggle still - to overcome the prejudices not of a monolithic majority, but of a "majority" composed of various minority groups of whom it was said - perhaps unfairly in many cases - that a shared characteristic was a willingness to disadvantage other groups. As the nation filled with the stock of many lands, the reach of the clause was gradually extended to all ethnic groups seeking protection from official discrimination . . .
As this court recently remarked in interpreting the 1866 Civil Rights Act to extend to claims of racial discrimination against white persons, "the 39th Congress was intent upon establishing in federal law a broader principle that would have been necessary to meet the particular and immediate plight of the newly freed Negro slaves" . . .
Petitioner urges us to adopt for the first time a more restrictive view of the equal protection clause and hold that discrimination against members of the white "majority" cannot be suspect if its purpose can be characterized as "benign." The clock of our liberties, however, cannot be turned back to 1869 . . . It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others . . . "Two-Class Theory"
Once the artificial line of a "two-class theory" of the Fourteenth Amendment is put aside, the difficulties entailed in varying the level of judicial review according to a preceived "preferred" status of a particular racial or ethnic minority are intractable. The concepts of "majority" and "minority" necessarily reflect temporary arrangements and political judgements. As observed above, the white "majority" itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the state and private individuals.
Not all of these groups can receive preferential treatment and corresponding judicial tolerance of distinctions drawn in terms of race and nationality, for then the only "majority" left would be a new minority of White Anglo-Saxon Protestants. There is no principled basis for deciding which groups would merit "heightened judicial solicitude" and which would not.
Courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups. Those whose societal injury is thought to exceed some arbitrary level of tolerability then would be entitled to preferential classifications at the expense of individuals belonging to other groups. Those classifications would be free from exacting judicial scrutiny.
As these preferences begin to have their desired effect, and the consequences of past discrimination were undone, new judicial rankings would be necessary. Preferential Programs
The kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within the judicial competence - even if they otherwise were politically feasible and socially desirable.
Moreover, there are serious problems of justice connected with the idea of preference itself. First, it may not always be clear that a so-called preference is in fact benign.
Courts may be asked to validate burdens imposed upon individual members of particular groups in order to advance the group's general interest. Nothing in the Constitution supports the notion that individuals may be asked to suffer otherwise impermissible burdens in order to enhance the societal standing of their ethnic groups.
Second, preferential programs may only reinforce common stereotypes holding that certain groups are unable to achieve success without special protection based on a factor having no relationship to individual worth. Third, there is a measure of inequity in forcing innocent persons in respondent's position to bear the burdens of redressing grievances not of their making.
Disparate contitutional tolerance of such classifications may well serve to exacerbate racial and ethnic antagonisms rather than alleviate them . . .
If it is the individual who is entitled to judical protection against classifications based on his racial or ethnic background because such distinctions impinge upon personal rights, rather than the individual only because of his membership in a particular group, then constitutional standards may be applied consistently . . .
Petitioner contends that on several occasions this court has approved preferential classifications without applying the most exacting scrutiny. Most of the causes upon which petitioner relied are drawn from three areas: school desegregation, employment discrimination and sex discrimination. Each of the cases cited presented a situation materially different from the facts of this case. Other Cases
The school desegregation cases are inapposite. Each involves remedies for clearly determined constitutional violations. Racial classifications thus were designed as remedies for the vindication of constitutional entitlement. Moreover, the scope of the remedies was not permitted to exceed the extent of the violations. Here there was no judicial determination of constitutional violation as a predicate for the formulation of a remedial classification.
The employment discrimination cases also do not advance petitioner's cause. For example, in Franks v. Bowman Transportation Co. , we approved a retroactive award of seniority to a class to Negro truck drivers who had been the victims of discrimination - not just by society at large, but by the respondent in that case . . .
The courts of appeals have fashioned various types of racial preferences as remedies for contitutional or statutory violations resulting in identified, race-based injuries to individuals held entitled to the preference. Such preferences also have been upheld where a legislative or administrative body charged with the responsibility made determination of past discrimination by the industries affected, and fashioned remedies deemed appropriate to rectify the discrimination.[*] But have never approved preferential classifications in the absence of proven consitutional or statutory violations.[**](FOOTNOTE)
* Every decision upholding the requirement of preferential hiring under the authority of Executive order 11246 has emphasized the existence of previous discrimination as a predicate for the imposition of a preferential remedy.
** This case does not call into question congressionally authorized administrative actions, such as consent decrees under Title VII or approval of reapportionment plans under the Voting Rights Act of 1965,. In such cases, there has been detailed legislative consideration of the various indicia of previous constitutional or statutory violations, and particular administrative bodies have been charged with monitoring various activities in order to detect such violations and formulate appropriate remedies. (END FOOT)
Gender-based distinctions are less likely to create the analytical and practical problems present in preferential programs premised on racial or ethnic criteria. With respect to gender there are only two possible classifications. There are no rival groups who can claim that they, too, are entitled to preferential treatment . . . the court has never viewed such classification as inherently suspect or as comparable to racial or ethnic classification for the purpose of equal-protection analysis.
In this case, unlike Lau and United Jewish Organizations , there has been no determination by the legislature or a responsible administrative agency that the university engaged in a discriminatory practice requiring remedial efforts. Moreover, the operation of petitioner's special admissions program is quite different from the remedial measures approved in those cases. It prefers the designated minority groups at the expense of other individuals who are totally foreclosed from competition for the 16 special admissions seats in every medical school class. Because of that foreclosure, some individuals are excluded from enjoyment of state-provided benefit - admission to the medical school - they otherwise would receive. When a classification denied an individual opportunities or benefits enjoyed by other solely because of his race or ethnic background, it must be regarded as suspect . . . Purposes of Special Admissions
The special admissions program purports to serve the purposed of: (1) "reducing the historic deficit of traditionally disfavored minorities in medical schools and the medical profession"; (2) countering the effects of societal discrimination; (3) increasing the number of physicians who will practive in communities currently underserved; and (4) obtaining the educational benefits that flow from an ethnically diverse student body. It is necessary to decide which, if any, of these purposes is substantial enought to support the use of a suspect classification.
If petitioner's purpose is to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin, such a prederential purpose must be rejected not as insubstantial but as facially invalid. Prederring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake . . .
The state certainly has a legitimate and substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination. The line of school desegregation cases commencing with Brown , attests to the important of this states goal . . . In the school cases, the states were required by court order to redress the wrongs worked by specific instances of racial discrimination. That goal was far more focused than the remedying of the effects of "societal discrimination," an amorphous concept of injury that may be ageless in its reach into the past . . .
Hence, the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of "societal discrimination" does not justify a classification that imdiscrimination" does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered . . .
It may be assumed that in some situations a state's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admission program is either needed or geared to promote that goal . . . Ethnie Diversity
The fourth goal asserted by petitioners is the attainment of a diverse student body. This clearly is a constitutionally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment.
Ethnic diversity, however, is only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body. Although a university must have wide discretion in making the sensitive judgments as to who should be admitted, cositutional limitations protecting individual rights may not be disregarded . . .
It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would contribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversiy is seriously flawed . . . The diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder rather than further attainment of genuine diversity.
Nor would the state interest in genuine diversity be served by expanding petitioners two-track system into a multitrack program with a prescribed number of seats set aside for each indentifiable category of applicants . . .
The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program. . . "New Definition of Diversity"
"In practice, this new definition of diversity has meant that race has been a factor in some admission decisions. When the Committee on Admissions reviews the large middle group of applicants who are 'admissible' and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer."
In such an admissions program, race or ethnic background may be deemed a "plus" in a particular applicant's file, yet it does not insulate the individual from comparison with all other candidates for the available seats. The file of a particular black applicant may be examined for his potential contribution to diversity without the factor of race being decisive when compared, for example, with that of an applicant identified as an Italian-American if the latter is thought to exhibit qualities more likely to promote beneficial educational pluralism. Such qualities could include exceptional personal talents, unique work of service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage, ability to communicate with the poor, or other qualifications deemed important.
This kind of program treats each applicant as an individual in the admissions process. The applicant who loses out on the last available seat to another candidate receiving a "plus" on the basis of ethnic background will not have been foreclosed from all consideration for that seat simply because he was not the right color or had the wrong surname.
It has been suggested that an admissions program which considers race only as one factor is simply a subtle and more sophisticated - but no less effective - means of according racial preference than the Davis program [but] a court would not assume that a university, professing to employ a facially non-discriminatory admissions policy, would operate it as a cover for the functional equivalent of a quota system. In short, good faith would be presumed in the absence of a showing to the contrary in the manner permitted by our cases. Summary
In summary, it is evident that the Davis special admission program involves the use of an explicit racial classification never before countenanced by this court. . .
The fatal flaw in petitioner's preferential program is its disregard of individual rights as guaranteed by the Fourteeth Amendment.
. . . Such rights are not absolute. But when a state's distribution of benefits or imposition of burdens hinges on the color of a person's skin or ancestry, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest.
In enjorning petitioner from ever considering the race of any applicant, however, the courts below fail to recognize that the state has a substantial interest that legitimately may be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin. For this reason, so much of the California court's Judgment as enjoins petitioner from any consideration of the race of any applicant must be reversed.
Following are excerpts from the opinion of Justices William J. Brennan Jr., Byron R. White, Thurgood Marshall and Harry A. Blackmum . . .
The court [yesterday] in reversing in part the judgment of the Supreme Court of California, affirmed the constitutional power of federal and state governments to act affirmatively to achieve equal opportunity for all. The difficulty of the issue presented . . . and the mature consideration which each of our brethren has brought to it have resulted in many opinions, no single one speaking for the court.
But this should not and must not mask the central meaning of [yesterday] opinions: government may take race into account when it acts not to demean or insult any racial group, but to remedy disadvantages cast on minorities by past racial prejudice, at least when appropriate findings have been made by judicial, legislative or administrative bodies with competence to act in this area.
he chief justice and our brothers Stewart, Rehnquist and Stevens have concluded that Title VI of the Civil Rights Act of 1964 prohibits programs such as that at the Davis Medical School . . . Our brother Powell, reaching the Constitution, concludes that, although race may be taken into account in university admissions, the particular special admissions program used by petitinner, which resulted in the exclusion of respondent Bakke, was not shown to be necessary to achieve petitioner's stated goals. Accordingly, these members of the court from a majority of five affirming the judgment of the Supreme Court of California insofar as it holds that respondent Bakke "is entitled to an order that he be admitted to the university."
Since we conclude that the affirmative admissions program at the Davis Medical School is constitutional, we would reverse the judgment below in all respects. Mr. Justice Powell agrees that some uses of race in university admissions are permissible and, therefore, he joins with us to make five votes reversing the judgment below insofar as it prohibits the university from establishing race-conscious programs in the future . . . Title VI
In our view Title VI . . . does not bar the preferential treatment of racial minorities as a means of remedying past societal discrimination to the extent that such action is consistent with the Fourteenth Amendment. . .
The legislative history of Title VI, administrative regulations interpreting the statue, subsequent congressional and executive action, and the prior devcisions of this court compel this conclusion. None of these sources lends support to the proposition that Congress intended to bar all race-consclous efforts to extend the benefits of federally financed programs to minorities who have been historically excluded from the full benefits of American life. . .
Properly construed . . . our prior cases unequivocally show that a state government may adopt race-conscious programs if the purpose of such programs is to remove the disparate racial impact its actions might otherwise have and if there is a reason to believe the disparate impact is itself the product of past discrimination, whether its own or that of society at large. There is no question that Davis' program is valid under this test.
Certainly, on the basis of the undisputed factual submissions before this court, Davis 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 on minority applicants by past and presnet racial discrimination.
The second prong of our test - whether the Davis program stigmatizes any discreet group or individual and whether race is reasonably used in light of the program's objective - is clearly satisfied by the Davis Program. It is not even claimed that Davis' program in any way operates to stigmatize or single out any discreet and insular, or even any identifiable, nonminority group.
True, whites are excluded from participation in the special admissions programs, but this fact only operates to reduce the number of whites to be admitted in the regular admissions program in order to permit admission of a reasonable percentage - less than their proportion of the California population - of otherwise underrepresented qualified minority applicants. . . Davis' Program
We disagree with the lower courts' conclusion that the Davis program's use of race was unreasonable in light of its objectives. First, as petitioner argues, there are no practical means by which it could achieve its ends in the forseeable future without the use of race-conscious measures.
Second, the Davis admissions program does not simply equate minority status with disadvantage. Rather, Davis considers on an individual basis each applicant's personal history to determine whether he or she has likely been disadvantaged by racial discrimination. . .
Finally, Davis' special admissions program cannot be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants rather than using minority status as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants. For purposes of constitutional adjudication, there is no difference between the two approaches. . .
Accordingly, we would reverse the judgment of the Supreme Court of California holding the medical school's special admissions program unconstitutional and directing respondent's admission, as well as that portion of the judgement enjoing the medical school from according any consideration to race in the admissions process.
Following are excerpts from the opinion of Justice Stevens:
Section 601 of the Civil Rights Act of 1964 provides: "No person in the United States 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."
The university, through its special admissions policy, excluded Bakke from participation in its program of medical education because of his race. The university also acknowledges that it was, and still is, receiving federal financial assistance. The plain language of the statue therefore requires affirmance of the judgment below. A different result cannot be justified unless that language misstates the actual intent of the Congress that enacted the statute or the statute is not enforceable in a private action. Neither conclusion is warranted. . .
Belatedly, however, petitioner argues that Title VI cannot be enforced by a private litigant. The claim is unpersuasive in the context of this case. . .
The conclusion that an individual may maintain a private cause of action is amply supported in the legislative history of Title VI itself. In short, a fair consideration of petitioner's tardy attack on the propriety of Bakke's suit under Title VI requires that it be rejected.
The university's special admissions program violated Title VI of the Civil Rights Act of 1964 by excluding Bakke from the medical school because of his race. It is therefore our duty to affirm the judgment ordering Bakke admitted to the University.
Following are excerpts from the opinion of Justice Blackmun:
Despite its two-track aspect, the Davis program for me, is within constitutional bounds, though perhaps barely so. It is surely free of stigma, and . . . I am not willing to infer a constitutional violation.
It is worth noting, perhaps, that governmental preference has not been a stranger to our legal life. We see it in veterans' preferences. We see it in the aid-to-the-handicapped programs. We see it in the progressive income tax. We see it in the Indian programs. We may excuse some of these on the ground that they have specific constitutional protection or, as with Indians, that those benefited are wards of the government. Nevertheless, these preferences exist and may not be ignored. And in the admissions field, as I have indicated, educational institutions have always used geography, athletic ability, anticipated financial largest, alumni pressure, and other factors of that kind. . .
I suspect that tt would be impossible to arrange an affirmative action program in a racially neutral way and have it successful. To ask that this be so is to demand the impossible. In order to get beyond racism, we must first take account of race. There is no other way. And in order to treat some persons equally, we must treat them differently. We cannot - we dare not - let the Equal Protection Clause perpetrate racial supremacy.