A typographical error distorted a sentence in the main story yesterday on the Supreme Court's decision in the Bakke case. As written, the sentence was: "Similarly, Jack Greenberg, director-counsel of the NAACP Legal Defense Fund, said that many types of remedial plans are now "secure," but expressed fears that the multiple opinions will set off new legislative and court struggles.
The Supreme Court yesterday upheld the principle of affirmative action to overcome past discrimination but at the same time ordered the University of California to admit Allan P. Bakke.
In its historic 5 to 4 decision, which gave little comfort to the political extremes in the debate over affirmative action programs, the court struck down remedial plans setting up quotas based solely on race or ethnic origins without proof of constitutional or statutory violations.
Specifically, the court found invalid the plan at the University of California Medical School at Davis that established a rigid quota that reserved 16 to 100 places in each year's class mainly for blacks, Hispanics and Asian-Americans.
Bakke, a 38-year-old white engineer, had claimed that the quota system denied him entrance to the medical school even though his admission test scores were higher than many of those admitted under the minority program.
"Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake," Justice Lewis F. Powell Jr. said in announcing the judgement of the court.
Powell resolved the most crucial stalemates with a centrist vote, ending fears both of a catastrophic end to affirmative action and of a validation of extreme "reverse discrimination."
Powell agreed with four of his colleagues, spoken for by Justice William J. Brennan Jr., that race can be considered. But he also agreed with the other four justices, led by John Paul Stevens, that the medical school must admit Bakke.
There were three major opinions: Powell's announcing the judgement of the court's and Brennan's and Stevens', each concurring in part and dissenting in part to the judgement. Three of Brennan's allies, Justices Byron R. White, Thurgood Marshall and Harry A. Blackmun, each wrote a supplemental opinion. The text of all of the decisions ran a total of 154 pages.
After building suspense in the hushed courtroom by announcing decisions in two lesser cases, Chief Justice Warren E. Burger disclosed that the case of the Regents of the University of California vs. Bakke "will be disposed of" with the judgement and without a majority.
Starting with Powell, all of the justices but White who wrote opinions announced them in whole or in part from th bench, a process that took about an hour.
Few reactions to the decision echoed the gloomy tones sounded by Justice Marshall. After recalling how court decisions in 1883 and 1896 had "Strangled Congress' efforts to use its power to promote racial equality," he cited the progress begun with the school desegregation decision of 1954.
"Now," he said, "we have this court again stepping in, this time to stop affirmative action programs of the type used by the University of California."
But Attorney General Griffin B. Bell, pointing out that the court had adopted the basic position urged by the government to preserve affirmative action programs in which race is a factor, said at the White House that the decision was "very helpful" and that it pleased him.
The American Civil Liberties Union estimated that the ruling will uphold "90 percent or more of existing affirmative action programs." ACLU chairman Norman Dorsen said, however, that he was fearful" that it will "sap the will" of officials responsible for intergrating universities or lead them to dismantle plans the court would affirm.
Similarly, Jack Greenberg, director counsel of the NAACP Legal Defense Fund, said that many types of remedial plans are not "scure," but expressed fears that the multiple opinions will set off new legislative and court struggles.
While Joseph L. Rauh Jr., vice president of Americans for Democratic Action, perceived "a stunning blow" to racists, a black leader, the Rev. Jess Jackson, told ABC, "We have lost a major legal decision . . ."
In Berkeley, University of California President David S. Saxon called the decision "an overall victory for the university's affirmative action plans."
The decision sent no clear signal about how the court will dispose of pending cases that raise issues related to those in the Bakke case.
One of the cases involves a requirement in the Public Works Employment Act that 10 percent of the grants made under it must be sent for "minority business enterprises" owned by blacks, Hispanics, Orientals, Indians Eskimos or Aleuts.
Another case involves the largest civil rights settlement in history: the affirmative action program instigated by the government and agreed to by the American Telephone & Telegraph Co.
The plan sets goals and timetables for preferential entry-level hiring and for promotions and transfers. The aim is to achieve by next Jan. 17, when the plan expires, a racial, ethnic and sexual balance in the composition of the workforce in Bell System facilities everywhere.
The origins of yesterday's case were in 1973, when Bakke was rejected by the medical school. After he was rejected again in 1974, he filed a suit in California Superior Court alleging that the university had violated both the 14th Amendment, which says that No state deny to any person the equal protection of the laws," and Title VI of the Civil Rights Act of 1964, which says:
"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." Such assistance went to the medical school.
The trial court ruled for Bakke under both the amendment and Title VI. But the Supreme Court of California ordered the university to admit him solely on the constitutional ground. The question before the U.S. Supreme Court was whether to affirm or reverse.
In October, three days after hearing oral argument, the court issued an unsigned order asking the parties to file briefs on the relevance of Title VI. That issue was revealed yesterday to have been both crucial and divisive.
For Justice Stevens, joined by Chief Justice Burger and Justices Potter Stewart and William H. Rehnquist, Title VI disposed of the case.
Its "plain language" requires affirmance, Stevens wrote. It states the actual intent of Congress as revealed by the legislative history, and it has "independent force" rather than being a mere "simple paraphrasing" of the 14th Amendment, he said.
Moreover, Stevens said, the court's "settled practice . . . is to avoid the constitutional issue if a case can be fairly decided on a statutory ground."
In contrast, Justice Brennan contended that Title VI is essentially a restatement of the 14th Amendment because it "prohibits only those uses of racial criteria that would violate" it if employed by a state. "It 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 . . . amendment," he said.
Justice Powell agreed, noting that "supporters of Title VI repeatedly declared that the bill enacted constitutional principles," and that its language, "like that of the Equal Protection Clause, is majestic in its sweep."
The remaining important question about Title VI was this: does it give a private party such as Bakke a right to sue for enforcement?
Stevens and the three justices who joined him said it did. That was also the view of Solicitor General Wade H. McCree, who was in the court's chamber to hear the judgment.
Justice Brennan and two of his three allies, Justices Marshall and Blackmun, said that they were assuming for the purpose of deciding the case on constitutional ground that Bakke had a right of private action, but that they needn't resolve the question because it was neither argued nor decided in the lower courts. Justice Powell agreed. Justice White, disagreeing, said Congress intended to confer such a right.
Thus there were four votes saying Bakke had a right to sue, four were noncommittal, and one that said he had no standing. This lineup may have critical importance for a third pending case, which involves alleged sex discrimination.
When practiced by educational institutions receiving federal funds, sex discrimination is outlawed by Title IX, a 1972 amendment to the civil rights law. This prohibition "was avowedly based upon Title VI," McCree has told the court.
The pending case was brought by Geraldine G. Gannon, who blames sex discrimination for the denial of her application for admission to the University of Chicago Medical School, McCree said whether Title IX makes a private right of action available to implement its goals "is an important issue that this court should resolve."