Considering Bakke

OVER THE PAST FEW MONTHS, people all over the country have been trying to sort out the issues and absorb the analyses in the controversial case of Regent of the University of California v. Allan Bakke. Many have debated with themselves about what personal stance to take, but have ended up more confused. Most people realize by now, for example, that the challenged U.C. Davis Medical School special admissions program goes beyond what is normally understood as affirmative action, but they question the charges that it amounts to a rigid quota system.

They also don't quite know what to make of the various shades of pro-and anti-Bakke legal arguments. From the pro-Bakke side, they've been hit with two arguments, one reactionary and the other much more subtle. The reactionary argument (advanced by the B'Nai B'rith Society and Bakke himself, is that in rejecting Allan Bakke, a white man, while accepting "less qualified" blacks under a special "quota" system, U.C. Davis discriminated against Bakke on the basis of his race and thus violated his equal rights under the 14th amendment. The more subtle stance, (taken by the American Jewish Committee) is that the U.C. Davis program constituted a "quota" system and that while affirmative action measures and guidelines for all disadvantaged groups should be continued, admissions "quotas" based solely on race should not.

From the anti-Bakke side, the undecided or unsure have also heard two lines, both putting the U.C. Davis plan within the context of the larger struggle for affirmative action, but on two different emotional levels. At the legalistic level, advocates like Daniel Steiner '54, who filed Harvard's amicus curiae brief on the case with the Supreme Court, argue that it is important not to rule against the U.C. Davis program as a quota system because it is still early enough in the affirmative action game so that individual admissions committees deserve some elbow room in working out their own programs. At the more emotional level, a number of black politicians and spokesmen for civil rights groups have stressed the crucial symbolic impact of the ruling, predicting that, subtleties aside, ruling against U.C. Davis would be seen as a ruling against affirmative action, and that it could mark the first victory in a campaign to turn back the tide of affirmative action and the progress of civil rights programs and legislation by those who now think minorities have gained too much, too fast in the past decade.

While many of the people following the case have been able to come to a conclusion about where they stand, a disturbing number still seem to be basing their positions on misinformed, and in some cases pernicious, assumptions. Most of those misguided preconceptions revolve not around the Bakke case specifically, but around the nature of affirmative action in general. One wrong-headed notion is that affirmative action can mean quotas; there are those who back U.C. Davis in the name of affirmative action but still think they are now supporting quotas in doing so. The other is that affirmative action implies a reduction of admissions standards. Far too many are thus feeling pressure to support concepts that they don't feel comfortable with--quotas and lowered standards. But since affirmative action has never entailed either of these things, it is important to go back now and review the premises of affirmative action as it was set up, what it has accomplished in the past decade, and what implications these various positions and the possible Supreme Court rulings would realistically have on its future.

FIRST THERE ARE A NUMBER of things that affirmative action is not. It is not quotas. Rather, affirmative action has involved setting "goals" and "timetables," which are estimates of the number of students a university would like to see admitted under affirmative action, or the time within which they would like to see major advances toward equal opportunity attained. Nor is there really the danger that if the U.C. Davis case is not ruled unconstitutional that this will only be the beginning of a rash of "quota" systems. Most admissions officials don't feel comfortable in the least with the idea of quotas, and since the federal government would never mandate schools to start using them, they don't have to worry. Furthermore, it is hardly clear that the U.C. Davis program could ever be cited as a precedent for any truly rigid, institutionalized racial quota system. For that, the school must have a fixed number of places it is required to fill each year, or else a bottom and a ceiling. The U.C. Davis program fails to fit the definition: each year of the special 16-place program the medical school also admitted additional blacks in its general pool, and in one year the special admissions staff felt that only 15 qualified students had applied, and thus filled only 15 places.

Another thing affirmative action was never meant to entail is a reduction of admissions standards. There are numerous critics who argue that this has been its effect in practice. As of now, however, the only evidence these critics can marshal are comparisons of the renowned "numerical" admissions criteria--test score and grades. Yet it is becoming more and more clear to admissions officers that, affirmative action aside, the numerical statistics are only of limited value in determining a student's over-all qualifications and potential. Admissions officers have grown to appreciate more and more over the past decade that other factors--race, geographical location, economic status-must be taken into account, and not just for the sake of "diversity" (although, disappointingly enough, this is the chief rationale for considering these factors that Harvard gives in its amicus curiae brief on the Bakke case). A strong argument can be made for the usefulness of these non-numerical factors in predicting an applicant's motivation and potential for excellence, as well. As former Justice William O. Douglas put it in his dissent from the Supreme Court's majority decision in the last potentially major test case for affirmative action in admissions, DeFunis v.Odegaard:

...a black applicant who pulled himself out of the ghetto into a junior college can thereby demonstrate a level of motivation, perseverence and ability that would lead a fairminded admissions committee to conclude that he shows more promise for law study than the son of a rich alumnus who achieved better grades at Harvard. That applicant would not be offered admission because he is black but because as an individual he has shown he has the potential while the Harvard man may have taken less advantage of the vastly superior opportunities offered him...There is currently no test available to the admission committee that can predict such possibilities with assurance but the committee may nevertheless seek to gauge it as best it can and weight this factor in its decisions.

Douglas argues that rather than having the negative and counter-productive effect of making admissions committees lower their conventional standards, affirmative action can have the progressive effect of alerting admissions committees to ways in which they can widen their standards.

NOW TO REVIEW WHAT affirmative action was intended to, and should, mean. Perhaps the most helpful explanation of its purpose is what can be called the "overcoming-discouragement" premise. This is based on the understanding that systematic discrimination against minorities in America's institutions of higher learning until the recent past, has historically discouraged all but a handful of minorities from even contemplating, let alone applying and competing to enter these institutions. Thus the mandate that affirmative action imposes on universitites is to refrain from any admissions processes that might continue to discourage minorities. This means more than showing no signs of discrimination; admissions committees are obliged to take positive and explicit action, as did the U.C. Davis admissions program, to ensure that even disadvantaged minorities will know that, if qualified, the equal opportunity to benefit from higher education is open to them.

Unfortunately, the trial record that has gone to the Supreme Court in the Bakke case is limited enough so that the Supreme Court justices will probably decide that they can only hand down a very narrow ruling. The question of just how far admissions committees can go in attempting to make affirmative action truly work will go unresolved. But the Supreme Court must uphold the right of the U.C. Davis special program to exist, for it appears clear that both the intent and the effect of the program has been to act according to the spirit and principles of affirmative action, rather than to mechanically impose rigid quotas. Finally, the justices should sieze the opportunity to re-educate the public with the premises, instrumentalities and continued social necessity of affirmative action-because only with a common understanding of its purpose will we be able to carry on a reasoned dialogue when these issues arise again in the future.