Landmark Law Cases and American Society

Race, Education, and Affirmative Action

Howard Ball

• Publisher: University Press of Kansas
• Year: 2000
• ISBN:
  9780700624331
• Topic: Law
• Subtopic: Legal History
• Index: Law

Twice denied admission to a California medical school despite better grades and test scores than successful minority applicants, Allan Bakke took his grievance to court and set off a major controversy over affirmative action. Bakke claimed that he was a victim of reverse discrimination, and his case has been considered by many as the most important civil rights decision since the end of segregation—and also one of the most difficult ever heard by the Supreme Court.Howard Ball now reviews the many issues raised by this case that placed affirmative action on trial. He examines the law and politics surrounding Bakke in an even-handed manner, presenting both sides of the debate and discussing key arguments presented by pressure groups. He also offers a behind-the-scenes look at what transpired during the months between oral arguments before the Court and the justices' final decision, including secret conference sessions and judicial memos.While four justices confirmed that Bakke had been the victim of reverse discrimination, four others agreed that the school's affirmative action plan was a logical application of the 1964 Civil Rights Act. Justice Lewis Powell sided with both viewpoints, resulting in Bakke's admission to the school and the upholding of affirmative action. The Court's unusual split decision invalidated UC-Davis's quota program for minorities but also struck down a California court's ruling that race could not be used as a factor in considering applicants.In light of eroding public support for affirmative action today, Ball examines the impact of Bakke and its use as a precedent. He also reviews recent events such as California Proposition 209, Washington Initiative 200, the "One Florida Initiative" program, and the Supreme Court's refusal to overturn Texas v. Hopwood —a decision that forced the University of Texas to eliminate affirmative action in its law school.As affirmative action continues to divide judges, legislatures, and citizens, the fragile consensus forged by Justice Powell seems to be collapsing. This book offers essential background for anyone interested in the controversy, helping readers to better understand the dynamics of Supreme Court decision making in emotionally charged litigation and to arrive at a more informed opinion over this vexing issue.

CHAPTER 1

Affirmative Action in Higher Education

Dawn, October 12, 1977: hundreds of people lined up at the U.S. Supreme Court building, waiting to hear the oral arguments in the case of Regents of the University of California v. Allan Bakke. For NBC-TV news correspondent Carl Stern, it was a case that “may be the most important civil rights case since segregation was outlawed in the 1950s.”

That evening, all three television network anchors led off the news with comments about Bakke. Walter Cronkite on CBS news: “The Supreme Court heard arguments in a controversial case that could produce its most important civil rights ruling in two decades.” On ABC news, anchor Harry Reasoner began: “Good evening. One of the most important civil rights cases in two decades, the Allan Bakke reverse discrimination suit, was argued before the Supreme Court today.” At NBC, anchor David Brinkley called the Bakke case “one of the most difficult the Court has had in years.”

The three anchors then turned to other newsmen for additional information. ABC’s Tim O’Brien commented on the presence “of an overflow crowd for what could be one of the most important civil rights cases ever.” CBS’s Eric Severeid said that “today’s Bakke case was as inevitable and is as significant as the school desegregation cases of the early 50s.” On NBC news, John Chancellor spoke to the possibility of Bakke entering “the Hall of Fame of great cases which changed the interpretation of the Constitution; cases like . . . Brown v. Board of Education, which changed the face of integration in this country.”

For millions of Americans watching television that night, it would be difficult not to grasp the fact that an extremely important event was taking place in the Supreme Court. When the Bakke decision was announced, their lives could be affected—positively and negatively—by what a Supreme Court majority said about affirmative action policies in education.

With massive television, radio, press, and news magazine coverage of the Bakke case, the public was inundated with terms such as “preferential treatment,” “affirmative action,” and “reverse discrimination.” By the time the decision of the U.S. Supreme Court was announced, on June 28, 1978, most Americans had a perception of the controversial public policy called affirmative action.

Polling data collected by the Gallup Poll and other organizations showed that most Americans opposed preferential treatment for racial and ethnic minorities. At the time of oral argument in Bakke, October 1977, the Gallup Poll indicated that 83 percent of Americans were opposed to any preferential treatment not based on merit.

In 1978, the American National Election Studies (NES) polling results indicated that most Americans polled believed that university admissions committees should admit applicants solely on ability (78 percent). Only about 11 percent of those polled supported preferential treatment for minority applicants. When polled by the race of the respondent, 52 percent of whites strongly supported university admission based on ability, while only 28 percent of African Americans agreed with the use of that measure. Only 2 percent of the white cohort supported preferential admissions processes for minority group members, while 24 percent of African Americans strongly supported affirmative action.

Through the end of the 1990s there was a fundamental difference between whites and African Americans when polled by the NES and other polling operations: Over this time period, the NES and the Gallup polls indicated that more than four-fifths of the whites polled opposed preferential treatment for minorities, with the greatest opposition (91 percent) coming after 1994. Data from African-American cohorts polled over this same period indicated that a majority of blacks in almost every poll supported preferential treatment for minorities, ranging from 74 percent in the 1990 NES poll to a bit over 50 percent in the 1994 NES and Gallup polls.

Percentage Opposed to Preferences

Year	1986	1988	1990	1992	1994	1996
Whites	85	87	82	87	91	88
Blacks	31	35	26	44	50	38

For all the parties in the 1970s DeFunis and Bakke litigation, the polls were a harbinger of the future conflicts, in the White House, Congress, the U.S. Supreme Court, and the larger society.

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The Divisive Social and Political Issue

In 1954, in a watershed opinion, Brown v. Board of Education, the U.S. Supreme Court unanimously concluded that in the field of public education, the doctrine of “separate but equal” has no place. “Separate educational facilities are inherently unequal. . . . Any language in Plessy v. Ferguson contrary to this finding is rejected.” With Brown, the Supreme Court ended almost six decades of constitutionally protected separated facilities that effectively discriminated against African Americans. By 1954, equal educational opportunity had become a bedrock social value in American society. In the eyes of the unanimous Court, education was the primary gateway to equal employment and educational opportunity in America.

However, a decade later, there was still massive elementary and secondary school discrimination in almost one dozen Southern states. And colleges and universities were still overwhelmingly white. At the time of Brown, only 4.9 percent of college undergraduates were African-American; in 1965, the figure was the same. For many minority students, this was an intolerable condition that could be remedied only by direct, radical actions.

Their argume nt for radical change in college and university admissions standards took note of the real world in which African Americans had lived since the first slaves were brought to shore in coastal Virginia in 1619 by the slave traders. In an ideal world, equality is a lodestar for society. In such an abstract world, all persons are judged on their intellect, their skills, their integrity, and their character, not on irrelevancies such as race, color, gender, national origin, and religion.

Minority students, however, knew that America did not exhibit these ideal societal characteristics and values. They lived in the real world of America, a world where until the middle 1860s African Americans were chattel property with no standing in federal courts of law and where they had no formal education. Until well into the twentieth century they were denied fundamental rights of citizenship, and their morbidity and mortality figures, compared to those of white persons in America, were dreadful.

The real world had been so unfair, so cruel and brutal, and had stigmatized the African-American community (and other minorities, including women, Native Americans, and Jews) for hundreds of years. It would be, as a justice of the U.S. Supreme Court said in Bakke, “the cruelest irony” to turn to the idealistic view of equality: a “color-blind” equality where people succeeded based on their innate, and fully developed, strengths. If that principle was implemented, if racially blind college and university admissions practices continued in American higher education, there would be the continued exclusion of virtually all minority applicants from the best undergraduate, professional, and graduate schools.

In the middle to late 1960s minority students across America demanded that university officials address this fundamental unfairness. On the University of Washington campus in May 1968, Larry Gossett and other members of the newly formed UW Black Student Union (BSU) stormed the office of the university’s president, Charles Odegaard. They demanded that UW admit more minority students. Of the more than thirty thousand students at UW in 1968, there were two hundred African Americans, twenty Native Americans, and about ten Mexican-Americans.

Odegaard promised to respond positively to their demands. He created a committee to find ways “to arouse the interest of Negro students in the university.” He sought funds to provide financial aid for new minority students. In the summer of 1968, the UW affirmative action policy was implemented. Initially, UW officials as well as BSU members traveled across the state to encourage minority students to seek admission to the UW. Odegaard created the Equal Opportunity Program (EOP) to handle admissions for minority students as well as those who were “educationally and economically disadvantaged.”

What happened at the University of Washington that year was happening at hundreds of colleges and universities across the nation: dynamic and militant minority students were marshaling their small numbers to demand of white administrators that there be greater diversity in the staff, the faculty, and the student population. Their demand: end “institutional racism” by diversifying the campus community—staff, faculty, administrators, and students. Their tactics: sit-ins, takeover of buildings on campus, and protest marches, in order to articulate their demands.

By the end of the 1960s, there were only 211 African-American medical students attending predominantly white medical schools. For the first time in American higher education, students’ applications to enter law and medical schools exceeded the number of available seats. By 1970, there were 43,000 applicants for only 13,000 medical school seats and 76,000 applicants for 45,000 law school seats.

The ratio of applicants to available places in the UW’s school of law was more than five to one by 1970 (1,600 applicants for 300 seats). At the UCD medical school there were 3,700 applicants for only 100 seats in the medical school. To continue to use the traditional color-blind admission policy, with its emphasis on grades and standardized test scores, would further erode the university’s efforts to bring minority students into these programs.

Given the reality of this emergent enrollment explosion, with its adverse impact on the acceptance of minority applicants, UW’s President Odegaard, the UCD faculty, and other university officials and faculty across the nation realized that educators had to take more aggressive actions to promote fairness and equality of opportunity in college admissions. Aggressive recruitment was simply not enough to diversify the university’s student population.

In one of the many ironies of the controversy over affirmative action in higher education, Odegaard and other university administrators seized upon the language in Title VI of the 1964 Civil Rights Act to justify their development of preferential admissions programs enabling minority students to attend undergraduate and graduate schools in greater numbers. Title VI stated: “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.”

In the minds of university administrators across the nation, past discrimination against minorities led to exclusion of racial and ethnic minorities from participating in higher education. They compensated for this history by rapidly, affirmatively, hiring and promoting minorities and women—groups who had been traditionally underrepresented and underpaid. The equal employment opportunities section of Title VI was used as the justification for this new, more flexible manner of hiring and promoting.

UW’s Equal Opportunity Program (EOP) administrators developed a separate admissions process for minority students. Even though by 1974 the UW moved to a minimum 2.5 grade point average for admission, the EOP standards for admitting minority students were lower.

The EOP justification for such an admissions program: to achieve diversity at the UW, affirmative action, not race neutrality, was needed. Affirmative action effectively promoted equal opportunity by providing qualified minorities with a college education. With such a higher education, graduates had a good chance to achieve success in life—based on their intelligence and training as well as the content of their character, as one African American, Shelby Steele, wrote at the time. As one of President William J. Clinton’s lawyers said, in a July 1995 report to the President that reviewed all affirmative action policies in place in the federal government, a fair chance to achieve success is a “bedrock value in our culture.”

Quickly, affirmative action in higher education led to admission of minority applicants who otherwise would not have been accepted at these universities and colleges. As a consequence, Marco DeFunis, Allan Bakke, Cheryl Hopwood (who successfully challenged the University of Texas Law School’s affirmative action program in the 1990s), and many other white applicants to professional schools who had been denied admission argued that they were the innocent victims of reverse discrimination. And they sued on the grounds that both the Fourteenth Amendment’s Equal Protection Clause (“Nor shall any state . . . deny to any person within its jurisdiction the equal protection of the law”) and Title VI of the 1964 Civil Rights Act—the very same Title VI used by university administrators to justify preferential admissions—prohibited such race-based preferential admissions procedures!

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Affirmative Action and the Clash of Values

For all observers, the 1978 Bakke case epitomized the societal clash—political, moral, legal—between the values of meritocracy and race neutrality and those of racial balance and equality of opportunity. It was the ideal notion of equality versus the need to provide members of minority groups with an educational boost so that they could enter areas of employment formerly denied them. The heart of the dilemma is the preferential use of race and ethnicity in these affirmative action higher education admissions programs.

A corollary problem, overshadowed by the controversy over preferential admissions of minority students into colleges, was the matter of retaining the entering minority students. Since affirmative action began, there had been significant numbers of admitted minority students who had dropped out of undergraduate college and professional schools. The stated reason, as UW BSU activist Gossett said decades later: “There were no social, cultural, academic, and financial structures necessary to keep us there.”

Responding to this problem of getting into college and then staying in and graduating led to the creation of the BSU and other minority campus organizations, at both the undergraduate and the graduate and professional school levels. Their arguments and their demands, then and now, were ironic: To actualize the ideal of equality in the future, American society must first deal with present group inequalities, vestiges of past racism. In higher education, that meant the creation of preferential affirmative action admission and scholarship programs. About this time, the U.S. Commission on Civil Rights defined affirmative action programs as “any measure, beyond simple termination of a discriminatory practice [against a group], adopted to correct or compensate for past or present [group] discrimination or to prevent [such group] discrimination from recurring in the future.”

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President John F. Kennedy’s 1961 Executive Order 10925 is considered the beginning of the affirmative action era. His EO created the President’s Committee on Equal Employment Opportunities. It was charged with ensuring that “affirmative steps” were taken to diversify the government’s work force. Government contractors were not to engage in employment discrimination based on race, ethnicity, or national origin. The contracting firm had to agree “to take affirmative action to ensure that applicants are employed and treated fairly.”

In the administration of Democratic President Lyndon Baines Johnson, 1963–1969, the federal government’s commitment to affirmative action policy fully emerged. His 1965 Executive Order 11246 called for each federal agency to “establish and maintain a positive program of equal employment opportunity for all civilian employees and applicants for employment.” In this effort, the use of “numerical goals and timetables” is appropriate for an institution to employ. An agency must show a “good faith effort” to diversify; to include groups that historically have not been included due to racial, ethnic, or religious discrimination.

Between 1961 and 1981, affirmative action was implemented as a national and state public policy, in employment, contracting, and education areas, by Republican presidents (Richard M. Nixon, 1969–1974, and Gerald Ford, 1974–1977) as well as Democratic chief executives (Kennedy, Johnson, and Carter, 1977–1981). From 1981 to 1993, two Republican presidents, Ronald Reagan, 1981–1989, and George Bush, 1989–1993, did all they could to end affirmative action programs. However, Democratic president Bill Clinton, 1993–2001, continued the federal government’s support of these programs.

Because of America’s past racial discrimin...

Table of contents

• Front Cover
• Series Page
• Title
• Copyright
• Dedication
• Contents
• Editors’ Preface
• Preface
• 1. Affirmative Action in Higher Education
• 2. Marco DeFunis Seeks Admission to the University of Washington School of Law, 1971–1974
• 3. “Let Me In!”: Allan Bakke’s Plea to the University of California, Davis, Medical School
• 4. Asking the U.S. Supreme Court to Review Bakke
• 5. “Mr. Chief Justice and May It Please the Court”: The Oral Arguments in Bakke, 1977
• 6. Bakke and the Dynamics of Supreme Court Decision Making
• 7. Affirmative Action Public Policy in the Politically Turbulent 1990s
• 8. The Bakke Legacy: Hanging by a Thread?
• Chronology
• Relevant Cases
• Bibliographical Essay
• Index
• Back Cover