A Landmark Case Goes to Court

IN THE Supreme Court of the United States

October Term, 1977

No. 76-811

THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Petitioner, v. ALLAN BAKKE, Respondent.

The United States Supreme Court will hear oral arguments today in the controversial case Regents of the University of California v. Allan Bakke.

The case, which challenges the constitutionality of racial quotas, and perhaps even the concept of affirmative action, has generated widespread concern and interest from such disparate groups as the Congressional Black Caucus and the Anti-Defamation League of the B'nai B'rith (ADL).

Concerned parties have filed 58 amici curiae, or "friend of the court" briefs--the greatest number of such briefs ever submitted for a Supreme Court case, and indicative of the complexity and importance of the suit. Amici curiae briefs provide "third parties" with an interest in the case an opportunity to express their particular viewpoints.

Bakke applied for admission to medical school in 1973 and 1974. Twelve schools--including the University of California Davis Medical School and the University of Minnesota, his alma mater--rejected Bakke's application.

Following his 1974 rejection, Bakke sued the Regents of the University of California, charging that in the same years he applied, the university admitted minority students less qualified than he under the aegis of a special minority admissions program that, he charged, "discriminated against whites on the basis of race."

Both Bakke and the Regents agreed to a limited trial, with Dr. George H. Lowrey, chairman of the U.C. Davis admissions committee and associate dean of student affairs, providing the only testimony. State and federal appellate courts can decide the case only on the basis of this limited trial record.

The trial court ruled that the U.C. Davis special admissions program, because it is effectively closed to white applicants, excludes whites from competition for 16 of the 100 places in a given class, violating the 14th amendment to the Constitution. Any admissions procedure using race as a factor is "arbitrary and unfair," the court reasoned.

However, the court would not order the university to admit Bakke unless he could demonstrate that in the absence of the special program he would not have been rejected.

When both regents and Bakke appealed, the case went directly to the California Supreme Court, bypassing the Court of Appeal "because of the importance of the issues involved," the regents' brief said.

The state Supreme Court upheld the ruling that the special admissions program constitutes a racial quota system and violates the 14th amendment. In addition, when the regents conceded they could not prove Bakke would not have been admitted in the absence of the special program, the state supreme court ordered U.C. Davis admit him, reversing the trial court's ruling on that point.

The University of California regents appealed this ruling to the Supreme Court, and today is their day in court. Maybe. While it is entirely possible that the Supreme Court will either affirm or reverse the prior decision, a third alternative exists, one which would delay any final ruling by months, even years. The Supreme Court may remand the case to the initial trial court to expand the record.

The findings of the trial court leave unresolved serious questions concerning operation of the special admissions program at Davis in 1973 and 1974," the amicus curiae brief by the United States Justice Department reads, "The trial court addressed its findings to the question whether the special admission program employed race in some manner; it did not address the question, which we believe is highly significant, of how race was used, and why."

The government's brief also called for a reversal of the state Supreme Court's judgment proscribing the use of minority-sensitive admissions criteria.

Thomas Atkins, Boston bureau director of the National Association for the Advancement of Colored People, said last week the Supreme Court should either "remand or reverse." "Reverse means," Atkins said, "to state without equivocation that, given the historical context, special efforts should be made to compensate for the inequalities of the past."

"And if the Supreme Court does not outright reverse," Atkins continued, "it should remand for a wider record. The issue is far too important to decide on such a limited record."

The question of compensatory efforts that Atkins mentions may be the most sensitive issue raised by this case.

For some, such as Isadore Vack, civil rights director of the ADL, "quotas and other preference systems represent reverse discrimination, with whites as the victims." The ADL supports "the traditional color-blind admissions methods based on individual merits," Vack said last week.

Others argue, as Lowrey did before the California trial court, that "there would be few, if any Black students and few Mexican-Americans, Indians or Orientals from disadvantaged backgrounds in the Davis Medical School, or any other medical school, if the special admissions program and similar programs at other schools did not exist."

The U.C. Davis admissions record prior to establishing the special program supports Lowrey's testimony. The Medical School opened in 1968, and during the two years in which the school had no special program, only three minority students--two blacks and one chicano--were admitted.

In its brief, U.C. Davis contends that despite the destruction of formal racial barriers in the '60s, "all but two medical schools in the nation [Howard and Meharry] remained virtually all-white islands in a multiracial society," untill the introduction of racially-sensitive admissions procedures.

In its amicus brief, the Antioch School of Law states "race, like other factors cited by the court as pertinent in interpreting test scores--socio-economic background, educational opportunities, etc.--is a factor bearing directly on the interpretation of test scores, grades and other evidence. To insist that the admission process must rely exclusively on racially neutral criteria and must exclude consideration of race in the interpretation of data is in fact to require discrimination on account of race."

Edgar S. Cahn, dean of Antioch School of Law, said this week, "In some sense, the question Bakkeposes is, 'How willing is a school to challenge the numberical criteria [grades and test scores] as adequately qualifying factors in the admission process?'

"All the evidence we have says those blessed scores don't say a damn thing about contribution or competence," Cahn said, adding that "to the extent that universities pretend or hide behind the facade of tests and numerical criteria, they regress in this question."

Cahn advocates a departure from numerical criteria, not only for disadvantaged minority students, but for all applicants. "Why is it," he asked, "when we look at a minority application, we look at all sorts of personality characteristics such as integrity, morality and staying power? Why is it we're not willing to apply the same criteria to whites?"

Alan M. Dershowitz, professor of Law at Harvard and author of a brief on behalf of the American Jewish Committee and several other ethnic organizations, said last week he supports affirmative action programs, but that "it's wrong to exclude disadvantaged whites" from such programs.

"My idea," Dershowitz said, "is to expand the concept of disadvantage. I'm critical of Davis for excluding disadvantaged whites, and I'm critical of Harvard for preferring advantaged blacks over disadvantaged blacks, and also over disadvantaged whites. There aren't many Portuguese students at Harvard for example I don't think one fewer black and one more Portuguese student would be such a bad idea," he added.

The ADL, too, is primarily concerned with the issue of race, not affirmative action. "The only issue presented by this case," the ADL brief contends, "is whether the state University of California can utilize race as a determinative factor in the admission and exclusion of candidates for its medical school at Davis."

Harvard, in conjunction with several other universities, also filed a brief in favor of remanding or reversing the decision.

The brief expresses concern that the out-come of the Bakke case may indirectly affect Harvard's admissions practices, although "as an immediate matter a pro-Bakke decision would not affect Harvard, because private institutions do not fall under the 14th amendment," Daniel Steiner '54, general counsel to the University, said last week.

Harvard fears that a pro-Bakke decision might jeopardize the freedom universities now enjoy to select their own admissions procedures and develop their own means of overcoming discrimination. "The hopes induced by Brown v. Board of Education in 1954, that within a generation racial inequalities in education would be eradicated, have not been realized. Universities need some elbow-room to experiment in their quest for solutions," the University's brief states.

Fears about the ramifications of the Bakke case are not confined to university admissions offices. Rep. Louis Stokes (D-Ohio), speaking last summer on behalf of the Congressional Black Caucus, said he fears the Bakke case may open the door for a reversal of the civil rights gains of the '60s.

"It is time now to recognize that there is much opposition in this nation to policies designed to gain equality in our society for minorities and for women," Stokes said. "The opposition is largely political. It takes the form of creating in the body politic the sense and belief that minority groups have gained too much and have gone too far in their quest for equality." Stokes added.

"The Bakke case," he continued, "has both stimulated the negative view of affirmative action and, if Mr. Bakke's effort is successful, stands to set back the legal tools for enforcing civil rights laws. That is, the Bakke case helps to create the political climate that makes legislation to restrict civil rights palatable."

The Bakke case has already affected affirmative action. Last Sunday, a federal district court judge in Los Angeles declared unconstitutional a recently passed Federal employment act requiring at least 10 per cent of some government construction spending be reserved for companies owned by members of minority groups. In supporting his decision, the judge cited the Bakke case, declaring racial quotas "invidious and unconstitutional."

William Segal '79, a member of the Boston Committee Against the Bakke Decision, said the Bakke case is part of a nationwide vffort to reverse the gaihs minority students made at colleges and universities in the past decade.

Although the Bakke case raises painfully relevant issues affecting numerous sectors of our society, in many respects the case provides a murky medium for deliberation.

On the one hand, Bakke was, in the words of the U.C. Davis brief, "a highly rated applicant who came close to admission." In almost every numerical category (MCAT test scores, grades, etc.) Bakke faired better than the mean scores for both special and regular admittees.

His age--he was 33 at the time of his first application--may have played some role in his rejection. As Lowrey wrote in reply to a letter from Bakke in 1971, two years before he actually applied, "when an applicant is over 30, his age is a serious factor which must be seriously considered."

Moreover, as Ralph R. Smith, assistant professor of law at the University of Pennsylvania, charges, there were between 32 and 35 persons each year who "would have been considered ahead of Bakke, even if the 16 task force slots were not set aside."

The integrity of the special admissions program has also come under fire. Like many medical schools, U.C. Davis usually reserves up to five places in its entering class for the dean to fill at his discretion. Critics charge these positions often go to less qualified applicants from influential families.

In addition, organizations such as the National Committee to Overturn the Bakke Decision (NCOBD) have accused U.C. Davis of colluding with Bakke and the California courts, with the ultimate purpose of losing the case.

Grantland Johnson, national organizer for the NCOBD, said last week the special program "was established because of the intense pressure Davis fell under during the '60s civil rights protest movement.

"It was U.C. Davis--not Bakke--who raised the question of the constitutionality of the program. Why did they do that? They did not want to win this case. U.C. Davis wants to see this kind of program--not only at U.C., but all over--buried," Johnson charged.

In support of his charge of collusion, Johnson cited the agreement U.C. Davis made with Bakke to hold a limited hearing rather than a full trial, thereby restricting the material available for any subsequent appeal. In so doing, the university precluded presenting to the court certain facts--such as the university's poor minority admissions record prior to the creation of the special program--facts that would have helped justify the special admissions program to the court.

In addition, Peter Storandt, an assistant to Lowrey at the time of Bakke's second rejection, encouraged Bakke to file suit against U.C. Davis, by reinforcing Bakke's belief that the university passed him up for less qualified students.

"It's pretty clear that Storandt couldn't have operated without the knowledge of other administrators," Johnson said.

Answering the charges of collusion, Cahn said he considered them largely irrelevant. "The question is not, 'What did they intend,' but 'What can come out of this case?" Cahn said.

The limited trial record will not necessarily prevent the Supreme Court from passing judgement on this case. Cahn said, owing to the volume of information that has since come into the public record. There is no hard-and-fast rule as to what a Supreme Court justice can take notice of, Cahn said, adding "the Court's willihgness to take in the amici curiae briefs is an indication that the Court may be willing to make certaih decisions now."

What kinds of decisions? "The Court may go out of its way and knock out quotas, or it may go the other route and legitimize the use of racially-conscious material," Cahn suggested. And if the Court remands the case to trial court, it may place guidelines on the lower court, as to the kind of questions and information it should consider.

However the Court rules, the issues surrounding the Bakke case will undoubtedly continue to perplex American social institutions in the near future.

[This is the first of a two-part series of articles about the Bakke case, which comes before the Supreme Court today.]