Stevens in Memory | Center for Equal Opportunity

The Justice’s Best Work

At the top of my (short) list of “Stevens in Memory” is John Paul Stevens’s separate opinion in the Bakke case, decided in 1978. You’ll recall Allan Bakke, especially if you repair even just occasionally to this site. Bakke was the aspiring medical student who despite strong academic credentials was rejected by the Medical School at the University of California at Davis. Bakke, who is white, sued, alleging racial discrimination inasmuch as the school gave him less of an opportunity than it did minority students to compete for a seat.

As I saw the case then and now, it was an easy one. Title VI of the Civil Rights Act of 1964 provides that “No person in the United States, on the ground of race, color, or national origin . . . shall be subjected to discrimination under any program or any activity receiving federal financial assistance.”

Bakke was a person, and he thought the medical school had indeed subjected him to discrimination on the basis of race under its admissions program. The school took federal money, so it had to answer Bakke when he complained. And however that went, the Supreme Court surely would side with him.

At issue was the meaning of discrimination, and when Title VI was enacted in 1964 there was no ambiguity. As stated by Hubert Humphrey during the Senate debate on the civil rights bill, discrimination meant “a distinction in treatment given to different individuals because of their different race.” Title VI, wrote Justice Stevens, stands “as a broad prohibition against the exclusion of any individual from a federally funded program on the ground of race.”

All nine Justices participated in Bakke.Three of them—Burger, Stewart and Rehnquist—voted with Stevens, making theirs a total of four. The remaining five justices—Brennan, White, Marshall, Blackmun, and Powell (the swing Justice in Bakke)—said that Title VI does not prohibit all racial discrimination in federally funded programs. Stevens lost by a single vote on the Title VI question, but his colorblind interpretation of that law was among his better exercises of the judicial power.

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Not that Stevens remained “an interprevist.” In time he moved to judicial activism. Not surprisingly, in the next big affirmative action case, a challenge in 2003 to the race-based admissions program at the Michigan law school, he voted with a five-Justice liberal majority to say that the pursuit of a diverse student body can justify the use of racial preferences.

That was 25 years ago, and two cases are now litigating the “diversity rationale’’ in admissions, the defendants being Harvard College and the University of North Carolina at Chapel Hill. We’re told to expect a decision in federal court in Boston as early as this summer. Visit ceousa.com for the latest news about the cases.

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