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Bakke: The Morning After


By Peter R. Melnick

ALLAN P. BAKKE, the 38-year-old engineer who claimed he suffered reverse discrimination at the hands of the University of California when his applications to the U.C. DavisMedical School were rejected in 1973 and 1974, will at last be among the new faces on that campus in September. For Bakke, who submitted no further medical school applications after receiving 11 rejections in 1974, the Supreme Court's 5-4 order that Davis admit him was clearly a victory. The effect the decision will have on a broad variety of affirmative action policies across the country, however, is somewhat less clear.

The Supreme Court undeniably could have handed down a more damaging and regressive decision with regard to minority rights. Most seriously, the Court had the opportunity to rule unconstitutional any admissions or hiring program that takes cognizance of race or of cultural background. Such a decision would have effectively dismantled every existing affirmative action program in the nation, and for the sake of domestic tranquility it is fortunate they did not.

Justice Powell is the engineer of the synthesis decision the Court released Wednesday, which addresses some of the larger concerns of both Bakke's supporters and his detractors. The decision legitimates the use of racially sensitive criteria in an admissions process, upholding the judgment of Justices Brennan, White, Marshall and Blackmun. They argue that the use of such criteria does not violate the sense of the Constitution or Civil Rights Act of 1964--that is, to provide "equal protection under the law." The decision also rules unconstitutional the use of any racially-based quota system in an admissions process, in concordance with the opinions of Chief Justice Burger, and Justices Rhenquist, Stewart and Stevens.

Because of an even split among the other justices, Powell's 55-page opinion has become the authoritative verdict on Bakke. In that Powell's opinion upholds the constitutionality of affirmative action, it is a strong and praiseworthy decision. But serious deficiencies mar the Powell opinion, leaving the future of affirmative action programs in jeopardy.

Powell's opinion embraces the policies of the Harvard College admissions office, as outlined in Harvard's amicus brief on the case, as "an illuminating example" of the kind of program the Court's decision points to. Harvard's policy, Powell favorably remarks, does not focus on admitting the minority candidate, but rather emphasizes the broader concept of "diversity." Indeed, nowhere in the amicus brief Harvard filed in support of U.C. Davis does the phrase "affirmative action" come into play.

A column by Anthony Lewis '48 that appeared in yesterday's New York Times inadvertantly points up the danger of a diversity-oriented program. "Harvard...used to have only a handful of minority students," Lewis writes, adding, "Under its present admissions policy, which he [Powell] praised, 8.1 per cent of those admitted for next fall's freshman class are black, 4.6 Hispanic." The clear implication of this passage is that Harvard's present admissions program admits a respectable number of minority candidates, unlike the old program, which was far more restrictive. In fact, this cure-all policy of diversity exists at Harvard today largely as it did 18 years ago, at which time the number of minority students attending Harvard could have been counted on one hand. Only the attitudes of the people who administer the policies have changed.

According to Daniel Steiner '54, general counsel to the University and one of the authors of Harvard's amicus brief, "Until ten years ago, diversity at Harvard simply meant an all-white student body." The change the concept of diversity has undergone since then is the product of "large forces released in our society in the late '60s," Steiner says, and he admits there is nothing down on paper to prevent Harvard from returning to its earlier concept of diversity.

Steiner is uncritical of the vagueness of diversity at Harvard, and even goes so far as to praise the "flexibility" of Harvard's admissions policy. "I think they're [minorities] about as firmly ensconsed in the admissions program as the objectives of the Harvard admissions goals can allow," he says. In that light, and in light of the tenuous position minority recruitment enjoys at Harvard, a certain amount of uneasiness over the adequacy of diversity-oriented policies is more than justified.

A SECOND DEFICIENCY in the Powell opinion is its vagueness on the subject of racial quotas in hiring practices. And while the use of quotas in admissions offices is of arguable merit, it plays a crucial role in industries. As one construction worker said while taking part in the anti-Bakke demonstrations in Washington last April, "Right now minority hiring in construction is based solely on quota systems. If the Court makes quotas illegal, then we lose about the only thing we have going for us as a people who haven't had the opportunity to get a good education." Although the Powell opinion leans toward upholding the industrial use of quotas, it does not address the issue directly. In the opinion of Allan M. Dershowitz, professor of Law and the author of a pro-Bakke amicus brief for the American Jewish Congress and several other organizations, the Court's decision leaves open the possibility of outlawing such quotas.

Finally, it seems clear that the Court, perhaps for the sake of certain legal technicalities, blinded itself to critical data. The decision to order Bakke's admission, for example, underlines this point. This ruling is tenable only on the basis of the initial trial record, which is unusually limited--the pre-arranged deposition of the dean of admissions at Davis furnished the sole testimony, in fact. All appellate courts, including the Supreme Court, must base any subsequent decisions on the trial record, although a justice may loosely draw on material from amici briefs. It would seem Powell chose to discount important information pertaining to Bakke's application. Bakke was, after all, rejected from ten other schools, two of which sent letters informing him that his age was a "serious factor" in determining his case. In addition, more than 30 applicants in each year Bakke applied would have been admitted ahead of him on the basis of benchmark scores, even if 16 slots had not been aside for the Special Program. An overabundance of material outside the trial record challenges Powell's opinion that Bakke was rejected from U.C. Davis because of racial discrimination. While it is true that Bakke's admission is of almost no consequence in the face of broader issues the case raises, the decision to admit him, like the ruling against quotas, reflects a difficulty in legal process. If the members of the Court were not prepared to admit this kind of data from the amici briefs to weigh in their decisions, they should have remanded the case back to the trial court.

It seems the Supreme Court has made a mammoth effort to please everybody on either side of the Bakke case. To a large extent they have succeeded: admissions offices are pleased that they may continue to take race into account, groups like the American Jewish Congress are happy the Court declared the use of quotas unconstitutional in admissions, and Bakke himself is satisfied at being legally vindicated.

But if the Bakke decision, for all its palliative effect, will come to be regarded as a display of the Court's genius, it is also cause for alarm. Its condemnation of quotas in admissions programs could have an unexpected effect on hiring practices. Even more important, the kind of flexible admissions policy Powell finds so compelling leaves the door open for the concept of diversity to shift away from the present definition, leaving the minority applicant high and dry. Such a shift does not seem likely today, but it is troublesome; they did leave the door open.

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