Looking Back at Bakke: Are Racial Preferences in Admissions Permanent?

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.”

Read more of this The Weekly Standard article by Terry Eastland by clicking here.