Bakke and Affirmative Action

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Thurgood Marshall, in an earlier photo with President Johnson


American reform sentiment always has sported a strong interest in protecting individual rights--witness the abolitionists before the Civil War or the NAACP and ACLU, both of which traced their origins to the Progressive Era.  But a rights-related component came to form a prominent part of American liberalism only with World War II, when liberals began championing the cause of civil rights (and, to a lesser extent, civil liberties); their renewed faith in capitalism turned them away from the antimonopolism of the 1930s; the battle against Nazism heightened the desire to purify American democracy.  This ideological shift paved the way for the wide, biracial support the civil rights movement attracted in the 1950s and early 1960s.
For a variety of reasons, however, rights-related liberals saw support for their agenda plunge in the 1960s.  Divisions within the civil rights movement and the emergence of issues such as forced school busing and affirmative action produced a white backlash against civil rights. This backlash was intensified by the GOP's "Southern Strategy," initially pursued by Richard Nixon and designed to stress issues, such as crime, busing, and affirmative action, that would drive a wedge between elements of the Democratic coalition.
In this environment, it came as little surprise that liberals turned to the courts--and especially the Supreme Court--as their protectors.  Indeed, as we've seen so far, since the Brown decision of 1954, the Warren Court had consistently handed down rulings favorable to civil rights in particular and to the rights-related agenda more generally, as in cases such as Engel v. Vitale and Miranda v. Arizona.  This turn to the Court, however, carried risks for rights-related liberals: it assumed that the judiciary would continue to support their viewpoint; and it intensified a growing anti-democratic thrust within the rights-related agenda itself.

Both of these problems came back to haunt the rights-related agenda in the early 1970s, when the Supreme Court quite suddenly exhibited a very different ideological bent than that of the Warren Court.  The Burger court almost instantly adopted a more restrictive interpretation of court-ordered busing.  But, given the contentious nature of the case and the issue's contemporary relevance, perhaps the most appropriate point to examine the changing nature of civil rights law comes with today's assignment: the Bakke case of 1978.

Allan Bakke, a 35-year-old white man, had twice applied for admission to the California (Davis) Medical School; he was rejected both times. As part of the university's affirmative action program, school reserved 16 places in each entering class of 100 for "qualified" minorities.  Bakke, whose test scores and other admissions qualifications exceeded those of accepted black candidates, contended that the University of California violated the Fourteenth Amendment's equal protection clause, and the Civil Rights Act of 1964, by practicing an affirmative action policy that, in effect, discriminated on the basis of race.

A badly fractured Court produced a confusing decision that did little to quiet the simmering debate over affirmative action.  There was no single majority opinion. Four of the justices contended that any racial quota system supported by government violated Title VI of the Civil Rights Act of 1964. Justice Lewis F. Powell, Jr., agreed, casting the deciding vote ordering the medical school to admit Bakke. But Powell reached his decision on the grounds that the rigid use of racial quotas as employed at the school violated the equal protection clause of the Fourteenth Amendment. The remaining four justices held that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible, as one of several admission criteria. At the same time, Justice Thurgood Marshall took pains to distance himself from Powell's unwillingness to more completely defend the concept of affirmative action.

This issue remains very much in the news today.  In the past three years, a combination of Circuit Court decisions and state referenda have overturned affirmative action programs in California and Texas educational institutions. In the last 12 months, the central battle was in Michigan, where the Court ultimately decided, by a 5-4 majority, to codify Powell's decision as the law of the land.