Affirmative Action Split the U.S. and the Courts

Supreme Court decisions confer an odd form of immortality--attaching a name to a legal doctrine that lives on long after the name’s true owner has passed on.

Allan Bakke may well prove the exception to that rule.

He was 32 when he applied to medical school, a former Marine from Los Altos who had become an engineer at a NASA lab and completed his premed requirements at night. Two years running, he applied to the medical school at UC Davis. Two times he was turned down.

In 1973, Bakke sued. The medical school was reserving 16 of the 100 seats in its first-year class for members of minority groups. Were that not the case, he would have been accepted, Bakke said.

Bakke’s case worked its way up through the federal courts for five years. Then, in the quirky way the law often works, the Supreme Court made him a byword.

The nine justices seized on Bakke’s case to try to resolve an issue that was dividing the nation: Did such a thing as benign discrimination exist?

“Affirmative action,” the code phrase for a passel of programs that range from admissions preferences to outreach efforts, was designed to even the odds for members of minority groups by consciously taking race into account. Comparing life to a footrace, President Lyndon B. Johnson had famously argued that one could not take a person who had been shackled, loose his bonds and then simply place him on the track and tell him he was now free to run and catch up with everyone else. Achieving equality in fact, not just in theory, would require giving some people a hand up, Johnson argued.

Beginning with his presidency, and accelerating under Richard Nixon, federal officials prodded the nation’s major corporations, unions and colleges and universities to give that extra help.

But as such programs spread in the late 1970s--and as the wage gap between black and white Americans began to narrow sharply--a strong backlash set in. Whites began to argue that they, now, were discrimination’s victims, and they headed to court.

It was in that context that Bakke’s case reached the high court. It sharply divided the nine justices.

Four justices voted to strike down all race-conscious affirmative action programs. Such programs were a violation of federal civil rights laws that bar discrimination on the basis of race, the four said. Four other justices voted to uphold what they saw as benign discrimination.

“In order to get beyond racism, we must first take account of race. There is no other way,” wrote Justice Harry A. Blackmun, one of the four supporters of affirmative action.

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The deciding vote came from Justice Lewis F. Powell. The university, he wrote, had violated Bakke’s rights by rejecting him as part of a rigid quota system--16 seats for minority group members, no matter what. Because of that, Bakke must be admitted, Powell ruled.

At the same time, he wrote, the law would allow the university to use race as a “plus factor”--one piece of information among many--that would be factored into an admissions decision.

And so, Bakke the man went on to medical school, enduring the protests of some classmates, earning a medical decree, becoming an anesthesiologist in Minnesota and shunning the press.

Meantime, Bakke the ruling shaped college and graduate school admissions across America. Quotas, no; goals, timetables and subtle preferences, yes. That was the Bakke rule.

It was not to last.

The Bakke ruling was handed down in June 1978. The next year, in a case involving a white steelworker from Louisiana who had been passed over for a training program in favor of a black worker with less seniority, the court upheld affirmative action in hiring and promotions.

By 1980, opposition to affirmative action had built into a major political force--one of many that Ronald Reagan tapped into in his successful run for the presidency. The Reagan administration began a concerted effort to roll back affirmative action programs and appointed Supreme Court justices who opposed them. Change came slowly, but by the time Reagan left office, the tide was clearly running against race-conscious programs.

That tide has continued in the courts and at the ballot box. In 1995, the high court issued a new ruling striking down virtually all federal affirmative action programs. “All racial classifications” by government are “inherently suspect and presumptively invalid,” the justices said. And in California, state voters in 1996 passed Proposition 209, banning racial preferences statewide.

That year, a federal appeals court in Texas ordered the University of Texas to stop granting a “plus” to minorities applying to the university’s law school. The Bakke decision, the appellate judges wrote, had implicitly been overturned by later rulings. The Supreme Court turned down a chance to either endorse or reject that opinion, meaning that it applies only in Texas, Louisiana and Mississippi. Still, the appeals court’s epitaph for the Bakke ruling now seems appropriate: It is, they said, “not binding precedent.”