Oliver Wendell Holmes, as great a phrase-maker as he was a judge, once wrestled with the problem of changing interpretations of concepts and language. "A word," he said, "is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and context according to the circumstances and the time in which it is used."
Justice Lewis Powell recalled that famous observation of Holmes last week in delivering his opinion on the Bakke case. The concept, and the word, the court had been debating so long were the same - discrimination. But the interpretation of its definition and applicability, as Holmes had fore-seen, varied greatly, in color and context. In the end, there was almost as much confusion as consensus about its present meaning, with these notable exceptions:
Allan Bakke, white, had been a victim of reverse discrimination in a program designed to favor blacks and other minorities who bore the special burden of past discrimination. Any special admissions program that sets specific racial or ethnic quotas is, per se, discriminatory. And society, through its elected and appointed governmental representatives, can legally take race into account in an attempt to remedy historic acts of discrimination.
Four of the justices united in spelling out what they called "The central meaning of today's opinions." That was: "Government may take race into account when it acts not to demean or insult any racial group, but to remedy disadavantages cast on minorities by past racial prejudice . . ."
These were reasonable, careful, and fair judgements. But beyond them lies the real problem in the wake of the Bakke decision: how to implement an admissions program that meets the court's standards fairly, and for all. The cited example of Harvard's program notwithstanding, this will not be easy to achieve. Two conflicting comments among the many rendered by the various justices last week are illustrative of the difficulties.
Justice Powell: "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."
Justice Blackmun: "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 [of the Constitution] perpetuate racial supremacy."
It was Blackmun who posed the unanswered question best:
"So the ultimate question, as it was at the beginning of the litigation, is: Among the qualified, how does one choose?"
There, the experience of Bakke himself is especially noteworthy.
It seems evident that Allan Bakke clearly was discriminated against when he applied, on two successive years, for admittance to the University of California at Davis Medical School. Not only was he a victim of racial discrimination, the record strongly indicates he ran also afoul of arbitrary, and unfair handling from the chairman of the admissions committee.
But Bakke's case goes far beyond petty or vindictive behavior directed by one person at one institution. Indeed, what happened to Bakke goes beyond the question of race itself. A careful examination of the Bakke case suggests that Bakke really was a victim of another insidious form of discrimination. Age.
The great irony of the Bakke case may well be this: while his name now always will be linked with racial discrimination. Bakke's real problem in getting admitted to medical school appears to have had nothing to do with race at all. He had applied to, and been rejected by, 10 other medical schools before filing a suit charging he had been discriminated against because of his race. In fact, the record clearly points to his age as the cause of his rejections.
Bakke wasn't just another good potential medical school candidate; his record was superior, not only to those in the special minorities group, but to the average scores achieved by the regular admittees as well. In fact, the statistics are striking.
Take the comparison between Bakke and the Davis classmates entering in 1974. Bakke's grade point average achieved in all science courses taken as a college undergraduate was higher than that of the regular group by a 3.44 to 3.36 margin. The special admittees' grade average was 2.42. His overall college undergraduate point average was also higher. Bakke's was 3.51 while the regular group averaged 3.29. The special admittees' grade point average was 2.62.
His achievement on his medical college aptitude tests, those standardized tests designed to indicate probable success in the profession, were even more striking. On verbal aptitude, Bakke stood in the 96th percentile. The average of those admitted in the regular group was in the 69th percentile, while the special average was 34. In science achievement, he stood in the 97th percentile. The regular average was 82, and the special 37. In general information, he stood in the 72nd percentile - exactly the average of the regulars, as compared to 18 for the special.
Scholastic achievement and aptitude weren't the only measurements in which he excelled. When Bakke first applied to Davis he received a personal interview by a Dr. Theodore H. West. The doctor, in his recommendation and assessment, termed Bakke "a very desirable applicant to medical school."
After Bakke was rejected that year, he wrote a letter protesting that the special admissions program operated as a racial an ethnic quota. His letter went to Dr. George H. Lowrey, associate dean of the medical school - and chairman of the admissions committee.
The next year Bakke applied once more. Again, his scholastic and aptitude rating were superior. Again, he was granted an interview, first with a student interviewer, who gave him a high rating and described him as "friendly, well tempered, conscientious and delightul to speak with." But his faculty interviewer that year was the same Lowery, to whom he had written his letter of protest.
Lowery gave Bakke the lowest of his six ratings. He found Bakke "rather limited in his approach," and said he was disturbed by Bakke's "very definite opinions which were based more on his personal viewpoints than upon a study of the total problem."
In both years Lowery, as chairman of the admissions committee, could have placed Bakke on the medical school waiting list. He never did.
It was after Bakke's second rejection that he brought his now-celebrated lawsuit.
Aside from that example of capriciousness, no good explanation has been given why Bakke, a superior candidate, didn't get into medical school - if not Davis, then somewhere else.
You won't find it in the massive legal record of his case, the commonly accepted opinion is that Bakke was considered too old to begin medical school. (He was in his early 30s when he first applied.) If so, then Bakke stands as a symbol of yet another kind of discrimination - that against age.
For him, and for others pondering all the implications of his case, one earlier career stands out. Albert Schweitzer had already established a world-wide reputation as a theological scholar, organist, philosopher and author of the classic work on the life and art of Bach when he decided to end that distinguished career and begin medical school. He was 30 at the time.
But, then, Oliver Wendell Holmes isn't a bad precednet, either. Holmes was 61 when he took his oath as a Supreme Court Justice, and 90 when he left the bench.