University of California Regents v. Bakke

According to Justice Powell, why is it acceptable for universities to use race as one factor in admissions but not to employ a racial quota system? What is “discrimination,” according to Powell? In the view of Justice Brennan, why does the Fourteenth Amendment’s principle of equality permit the Medical School’s admission system? Why was Bakke not discriminated against? According to Justice Stevens, why is it clear that the program violated Title VI?
Do the competing opinions in Bakke use the same understanding of “equal protection,” or do they have different notions of what “equality” means under the Constitution? Is this also true in Plessy, Brown, and Reynolds?

The Fourteenth Amendment declares that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” In Brown v. Board of Education (1954), the Supreme Court held that racial segregation in public school violates the Equal Protection Clause. Ten years later Congress passed the Civil Rights Act; Title VI of the Act declares that “No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” But neither Brown nor Title VI explicitly say whether states could employ race conscious admissions programs to remedy the effects of past discrimination.

The Medical School of the University of California at Davis opened in 1968 with an entering class of fifty students. In 1971, the size of the entering class was increased to one hundred students. No admissions program for disadvantaged or minority students existed when the school opened, and the first class contained three Asian students but no African Americans, Latinos, or American Indians . Over the next two years, the faculty devised a special admissions program to increase the representation of minority students in each Medical School class.

The special program consisted of a separate admissions system operating in coordination with the regular admissions process. On the application form, candidates were asked whether they wished to be considered as members of a “minority group,” which the Medical School described as “Blacks,” “Chicanos,” “Asians,” and “American Indians.” If these questions were answered affirmatively, the application was forwarded to the special admissions committee, which rated the applicants in a fashion similar to that used by the general admissions committee, except that special candidates did not have to meet the 2.5 grade point average cutoff applied to regular applicants. Sixteen of the one hundred seats in each incoming class of the Medical School were set aside for applicants from the special admissions system.

Allan Bakke was a white male who applied to the Davis Medical School in both 1973 and 1974. In both years Bakke’s application was considered under the general admissions program, and he received an interview. Despite a benchmark score of 468 out of 500 in 1973, Bakke was rejected. His application had come late in the year, and no applicants in the general admissions process with scores below 470 were accepted after Bakke’s application was completed. There were four special admissions slots unfilled at that time, however, for which Bakke was not considered. He applied again in 1974 and was rejected, even though applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s. He then sued the Medical School for admission, arguing that its special admissions program operated to exclude him from the school on the basis of his race, in violation of his rights under the Fourteenth Amendment and Title VI. The trial court found  that the special program violated the Federal Constitution and Title VI, but refused to order Bakke’s admission, on the ground that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program. Bakke appealed to the California Supreme Court, which ruled in his favor and ordered his admission to the Medical School. The school then appealed to the US Supreme Court, which handed down a split decision. With only Justice Lewis Powell signing the Opinion of the Court, it held by a 5-4 vote (Justices Powell, Stevens, Burger, Stewart, and Rehnquist) that the special admissions system violated Title VI and was therefore struck down (Justice Powell concluded that it also violated the Fourteenth Amendment). At the same time, however, the Court held by a different 5-4 vote (Justices Powell, Brennan, White, Marshall, and Blackmun) that neither Title VI nor the Fourteenth Amendment prohibited the Medical School from using race as one factor in admissions.

While Bakke decided the specific case and provided some guidance on which kinds of affirmative action programs would be permissible, the fractured opinions meant that it did not settle the issue. With changing personnel in the 1980s and 1990s, the Court voted in Adarand v. Pena (1995) to narrow the permissible use of race by demanding that it pass the strict scrutiny test, which requires government to have a compelling interest in using race and to use it as narrowly as possible. The Court then applied the strict scrutiny test to the use of race in college admissions in cases like Grutter v. Bollinger (2003), which explicitly endorsed (by a 5-4 vote) Justice Powell’s view that racial diversity is a compelling interest that permits a university to use race as one factor in admissions. Notwithstanding the Grutter decision, however, race conscious admissions programs remain constitutionally controversial.

—Jeffrey Sikkenga

Source: 438 U.S. 265; For Justice Stevens’s opinion, see 

Justice POWELL announced the judgment of the Court.

. . . The guarantees of the Fourteenth Amendment extend to all persons. . . . The guarantee of equal protection cannot mean one thing when applied to one individual and something else when applied to a person of another color. If both are not ac