Harvard was not a party in Bakke, but it was the most important opinion in that landmark case. It deserves to be read together with the filings in the ongoing Harvard racial admissions discrimination case, which was argued in October and the decision in which could come any time. It’s remarkable that one school could figure so prominently in two major cases raising many of the same issues, but that is what we have here. The 1978 Bakke case included an opinion that sanctioned use of the diversity rationale by which applicants lacking the race necessary for a sufficiently racial student body diversity have been discriminated against these past 40 years. The Harvard case now in litigation could eventuate in a ruling against the diversity rationale and for equal treatment under the law, as I explained in a piece first published last week in The Weekly Standard.
This fall Harvard College has been defending its admissions program against charges of racial discrimination brought in federal court. Ironically, this is not the first time that Harvard’s admissions practices have lain at the heart of an important case that could affect college enrollments across the country. There was, after all, Regents of the University of California v. Bakke, decided in 1978, which remains the most significant case in the lengthening history of affirmative action in higher education.
At issue in Bakke was the legality of racial preferences used by the medical school at University of California, Davis, to assemble a class. Five justices agreed, for different reasons, that the school’s admissions program, which operated effectively as a quota, was illegal and ordered the admission of the plaintiff, a white student named Allen Bakke. But a different set of five justices rejected the notion advanced by Bakke that an admissions program may never use race in selecting its student body.
For the latter group of justices, there was a way not only for a medical school but also for a law school or other professional or graduate school, and indeed for an undergraduate school, to administer an admissions program that legally uses race in deciding among applicants.
As Justice Lewis Powell explained in his separate opinion, racial classifications (i.e., preferences) are subject to strict scrutiny by reviewing courts, the most demanding test for constitutionality there is. Accordingly, racial classifications must be justified by a “compelling government interest.” Powell said that in the context of higher education there was one (and only one) such interest, that of diversity, which he interchangeably referred to as “ethnic diversity,” describing it as “only one element in a range of factors a university properly may consider in attaining the goal of a heterogeneous student body.”
The other factors included leadership potential, demonstrated compassion, and work and service experience. But ethnic diversity is a different kind of factor, said Powell, “a special concern of the First Amendment.” Free to pursue it, a school can make “its own judgments as to education” including “the selection of its student body,” which, when sufficiently ethnically diversified, can engage in “that robust exchange of ideas which discovers truth” (a lofty goal indeed).
Ethnic diversity is also different in another respect, for it is the only factor whose use is potentially discriminatory, a violation of federal law and the Constitution. Therefore, said Powell, “constitutional limitations protecting individual rights may not be disregarded.” But in Bakke’s case they were, and to such an extent that they had been violated.
The Davis medical school had an admissions program under which racial and ethnic minorities competed for 16 of 100 seats in a class and non-minorities for the remaining 84. The program, wrote Powell, “misconceives the nature of the state interest,” which is not that of “simple ethnic diversity, in which a specified percentage of the student body is in effect guaranteed to be members of selected ethnic groups, with the remaining percentage an undifferentiated aggregation of students.”
No—for Powell, the interest was subtler, not a matter of separate tracks for races or the percentages of a student body they should constitute, but one of “ ‘wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.”
Here Powell turned to the Harvard College admissions program to illustrate how a race-conscious constitutional program should work. Powell said that Harvard has “expanded the concept of diversity” such that it recruits disadvantaged blacks and Chicanos and other minority students. He said race had been a factor in some admissions decisions, being deemed a “plus” in a particular applicant’s file, even tipping the “balance” in favor of an applicant. Harvard hasn’t set quotas for blacks or any other group, said Powell, but it recognizes that “in choosing among thousands of applicants . . . [it] pays some attention to distribution among many types and categories of students.”
“This kind of program,” wrote Powell, “treats each applicant as an individual in the admissions process.” A minority applicant is not insulated from comparison with a non-minority candidate for an available seat; no one is foreclosed from consideration for that seat simply because he “was not the right color or had the wrong surname,” said Powell. “His qualifications would have been weighed fairly and competitively, and he would have no basis to complain of unequal treatment” under the equal protection clause of the Fourteenth Amendment.
The fatal flaw in the challenged program, then, was its disregard of individual rights as guaranteed by the Constitution. Those rights, said Powell, are not absolute. “But when a State’s distribution of benefits or imposition of burdens hinges on ancestry or the color of a person’s skin, that individual is entitled to a demonstration that the challenged classification is necessary to promote a substantial state interest.” The Davis medical school didn’t make that demonstration. But in Powell’s view, it had “a substantial interest that legitimately [could] be served by a properly devised admissions program involving the competitive consideration of race and ethnic origin”—thus, no separate tracks for minorities, and no quotas but a competition among individuals.
This was the Bakke case, and over the years the critical issue that Powell alone among the justices had taken up did not go away. In fact, three of the federal appeals courts have split over whether educational diversity is a compelling state interest, as Powell claimed. The stakes remain high today, for if diversity is not a compelling interest, racial preferences have no foundation in the law.
In 2003, the Court used Grutter v. Bollinger to address the issue, and the answer it gave—that the law school has a compelling interest in attaining a diverse study body—has extended the use of racial tips and pluses, if not quotas and percentages, all of which cause discrimination.
As to numbers, consider these two: In Grutter the Court said that 25 years had passed since Powell endorsed the use of race to further an interest in student body diversity. Writing for the five-justice majority, Sandra Day O’Connor then said the Court expected that “25 years from now, the use of racial preferences will no longer be necessary” to advance that interest. That was a strange prediction, but it is progress that the justices on the Court these days—15 years since Grutter—aren’t considering what O’Connor called “a permanent justification for racial preferences.”—that the law school has a compelling interest in attaining a diverse study body—has extended the use of racial tips and pluses, if not quotas and percentages, all of which cause discrimination.
As to numbers, consider these two: In Grutter the Court said that 25 years had passed since Powell endorsed the use of race to further an interest in student body diversity. Writing for the five-justice majority, Sandra Day O’Connor then said the Court expected that “25 years from now, the use of racial preferences will no longer be necessary” to advance that interest. That was a strange prediction, but it is progress that the justices on the Court these days—15 years since Grutter—aren’t considering what O’Connor called “a permanent justification for racial preferences.”
