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BakkeAnalysis & Impact

A Critical Analysis of Bakke andIts Impact on Affirmative Action in Higher Education Presented by: Karla Alfaro-Urias, Deddeh F. Jones, Andrea Peterson, & Laura Zuppo Drexel University EDUC 705.902: School Law and Politics February 9, 2009

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Case Summary Allan Bakke, a thirty-five-year-old white male, applied for admission to the Medical School of the University of California at Davis (UCD) in 1973 and 1974; he was rejected both times. The Medial Schoolhad two separate admissions programs for their entering class. Sixteen of the 100 available seats were reserved for qualified minorities as part of its affirmative action program. The university contends that the reserved seats were held in an effort to redress longstanding, unfair minority exclusions from the medical profession (Oyez Project, 2009). The regular track was for majority, or white, students. On this track, candidates were automatically denied if they did not have a cumulative undergraduate grade point average (GPA) above a 2.5 out of a 4.0 scale. Approximately one in six of the regular track candidates were selected to interview (Parks, 2003). The combination of GPA, Medical College Admissions Test (MCAT) scores, interview letters of recommendation, and other non-numerical factors, such as extra- and co-curricular activities, resulted in a total “benchmark score” (Parks, 2003). Mr. Bakke believed he was denied because of his race as he had a 3.46 GPA (Eckes, 2004) and the average GPA of the students admitted into the special track was a 2.88 (Eckes, 2004). He contended that his credentials exceeded those of any of the minority students admitted. Additionally, the first time he applied he was late in the cycle and received a MCAT score of 468 out of 500; the second time he applied early and received a 549 out of 600 (Parks, 2003). A different committee, most of whom were minorities, operated the special admissions program. Those candidates self-identifying as minorities or economically disadvantaged were eligible for consideration under this special program. The candidates applying under this track did not have to meet the 2.5 grade point average cut-off, nor were they ranked against the regular track candidates (Parks, 2003). Approximately, one-fifth of the applicants were invited to interview and top choices were sent to the general admissions committee for review. According

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to Parks, no disadvantaged whites were admitted under the special program even though a good number of candidates applied (2003). Bakke contested the UCD’s decision arguing that its “admission policies were a case of reverse discrimination” (Ball, 2000, paragraph 5). Bakke filed his case in a trial court after his second rejection. The Superior Court of Yolo County California declared that the special admissions policy "operated as a racial quota" and violated federal and state constitutions and Title VI (Landmarkcases.org, n.d). In addition, the trial court saidthat race cannot be used as a factor for college admissions. However, Bakke's admission was not court ordered because he did not prove that he would have been admitted in absence of the special admissions program. Subsequently, the Supreme Court of California reviewed the case and agreed with the Superior Court in declaring that the special admissions program was unconstitutional. The Court ordered that Bakke be admitted to UCD’s medical program. Soon thereafter, the university petitioned the U.S. Supreme Court for review and was granted certiorari (Landmarkcases.org, 2009; Oyez Project, 2009). Mr. Bakke’s lawyers argued that race was the rationale for his exclusion into the school. They claimed that the university’s policies violated the Fourteenth Amendment's Equal Protection Clause, a provision of the California Constitution, and Title VI of the Civil Rights Act of 1964 (Oyez Project, 2009; Parks, 2003). The United StatesSupreme Court: Decision and Key Findings The Court held that the university’s special admissions program was unconstitutional; yet, the Court was “highly fractured” (Eckes, 2004, page 4), which may have “kept the Bakke case from having the impact on American law that it might have had otherwise” (Landmarkcases.org, 2009, paragraph 3). Although a 5-4 decision was rendered by the court, there was no single majority opinion. Justice Powell wrote the opinion for the divided Court; however, six justices in all filed separate opinions (Eckes, 2004). Powell’s writing has received

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the most attention though only Section V-C of his opinion contained his ruling and was joined by Justices Blackmun, Brennan, Marshall and White (Rosenblum, 2001). In Section V-C, Powell states that the State (California) has a legitimate interest in diversity and that it may devise an admissions program “involving competitive consideration of race and ethnic origin” (Rosenblum, 2001, page 2). Powell described the Harvard Collegeadmission program as a good model for universities to follow. Four of the justices were firmly against all use of race in admissions processes whereas four others advocated for the use of race in university admissions. Although Justice Powell was personally against the Medical School’s admission policy incorporating a quota, he found that universities were allowed to use race as a factor in the admission process. The result was that the medical school had to admit Mr. Bakke. Four other justices argued that the use of race as a criterion in admissions decisions in higher education was constitutionally permissible and Justice Powell agreed with that opinion as well, contending that the use of race was permissible as long as it was one of several admission criteria (Oyez Project, 2009). Therefore, the Court managed to minimize white opposition to the goal of equality (by finding for Bakke), while extending gains for racial minorities through affirmative action (Oyez Project, 2009, paragraph 3). According to Justice Powell, “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” (Pohlman, 1993, p. 247), but this does not preclude nor prohibit educational institutions from considering race as one factor in the admissions process (Ball, 2000). Additionally, Justice Thurgood Marshall argued that race could be considered in a policy of taking positive steps to remedy the effects of past discrimination as in an affirmative action program: “In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain

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a divided society. I do not believe that the Fourteenth Amendment requires us to accept that fate” (Infoplease, 2008, paragraph 4). Despite the Court’s affirmative response to using race as a factor in admissions, universities were cautioned that such affirmative action programs should be “narrowly tailored to serve the compelling interest of diversity in higher education” (American Council on Education, 2000, page 2). To date, the idea of taking race and ethnicity into account when making admissions decisions is still considered a very controversial practice. Impact of Bakke on Higher Education The impact of Bakke on higher education is extraordinarily significant. Its significance has been compared to decision in Brown v. Board of Education, which prohibited school segregation based on race. According to Alan Dershowitz, Harvard Law School professor, Bakke would be known “not for what it did but for what it didn’t do” (Ball, 2000) for affirmative action in higher education and for the admissions officers and administrators making decisions about the educational benefits of diversity. Because the Court had no single majority position, the case could not give clear guidance on the extent to which colleges could consider race as part of an affirmative action program (Infoplease, 2008, Paragraph 5). Additionally, the Court did not provide institutions with definitive guidance on “recruitment, outreach, and retention programs” (Coleman, Palmer, & Richards, 2005, page 2). This lack of guidance covers financial aid practices, as well as admissions (Coleman, Palmer & Richards, 2005). Today, however, affirmative action “is still the law of the land” (Rosenblum, 2001, page 1), except in a small number of states, for example, Texas, California and Florida, whose legislators only in more recent years passed anti-affirmative action laws. The significance of the Bakke case rests in its impact on improving the “diversification in all aspects of higher education” (Ball, 2000, paragraph 7). Some in higher education argue that Bakke was the beginning of affirmative action and is hailed as a victory; others, such as Robert

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Bickel, Stetson College of Law Professor, believe that the Court erred tremendously in the Bakke decision because “its legacy is years of confusion and sympathy for so-called ‘reverse discrimination’ jurisprudence” (personal communication, February 6, 2009). Bickel states the “education had to settle for six opinions and a divided view of the Constitution and federal law” when the Court settled for this “eventual compromise” (personal communication, February 6, 2009). Bickel also believes that the Bakke decision furthered the compelling interest of the state, which is to create more diverse student bodies, but did nothing for the “historical victims of race discrimination” (personal communication, February 6, 2009) who were routinely denied admission to colleges and universities across the nation. Others take a different view of the case and its impact on diversity and higher education. Many in higher education thought Bakke would help to provide “equal educational opportunities for formerly disadvantaged minorities” (Ball, 2000). The American Association of University Professors, through its book describing numerous research studies on the impact of diversity in higher education, cites both the Bakke and Brown cases as tremendously impactful cases that directly correlate with the increased numbers of racial and ethnic minorities on college campuses. The AAUP believes that “diversity on campus provides educational benefits for allstudents…that cannot be duplicated in a racially and ethnically homogeneous setting” (American Council on Education, 2000, page 3). Legal scholars aside, Bakke clearly had a role in diversifying college campuses; however, not all people support diversity in higher education. A number of majority, or white, students challenged race-conscious admissions programs following the Bakke decision. In these suits, students claim that their institutions violated the Equal Protection Clause of the Fourteenth Amendment (Eckes, 2004) when they were denied admission because of race. Despite the mixed opinion about whether or not Bakke should be

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perceived as a win or a set-back to the remedying of past discrimination, it has had a tremendous impact on how administrators do their jobs. Justice Powell’s controlling decision in the Bakkecase allows institutions of higher education, both public and private, to consider race and ethnicity in making admissions decisions and awarding financial aid, even if there is not a history of past discrimination at that university. Powell’s decision also confirmed the Court’s stance on extending professional deference to educators in making admissions decisions. Additionally, while institutions may not hold “dual admission tracks or racial set asides” (Rosenblum, 2001), otherwise known as quotas, they may construct race-conscious admissions programs. However, at the time of the Bakke decision institutions wondered how Bakke would impact their “ability to diversify their student body” (Ball, 2000) to overcome racial discrimination if they could not have separate tracks and to what extent they could still consider race. Because of the confusion, institutions and their legal counsels began to review their admissions policies to see if they were in violation of the guidelines established as a result of this important decision (Ball, 2000). One of Justice Powell’s findings was that “diversity was a compelling government interest” (Eckes, 2004) and that as long as institutions looked at race as “a plus factor among many different factors, like the Harvard College admission plan” (Eckes, 2004),the university was not in violation of the Fourteenth Amendment. Additionally, legal counsel advised universities to make their policies governing admissions decisions public so that they were “articulated and published to the most complete extent possible in an effort to confine administrative discretion” (McCormack, 1978) in the decision making process. The end result is that Bakke allows affirmative action in higher education and,as a result, diversity statistics show improvement in the number of African Americans and Hispanics enrolled in college (Ball, 2000). Meanwhile, the fate of affirmative action in higher education

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continues to evolve in the midst of the Court’s own struggle to draw a consensus on this matter. So far, there still remains work to be done. The Bakke decision as fractured and conflicting as it may be (Eckes, 2004), has been discussed, examined and dissected in numerous affirmative action cases leading up to today. Future Impact and Problems Such succeeding case law makes it difficult to say what the “potential” future impact of the Bakke case will be since the Court has been split on this issue. Nevertheless, its future outlook continues to be astonishingly perplexing and thus perpetuates a never-ending conundrum. Even the highest court of this nation could not definitively establish clearguidelines to the implementation of affirmative action in higher education. In essence, the case represents a deficiency between the meetings of the minds as to how to unequivocally address a legacy of discrimination against minorities with the application of affirmative action planning. The Court was divided on the basis of the extent that such programming may become too arbitrary and eventually lead to injustice. According to Justice Powell, universities could take account of race as a "plus factor”, but could not insulate minority candidates from competition with non-minority candidates (Dorf, 2003) by the use of racial quotas. As a result of its holding, a slew of cases surfaced attempting to seek more guidance from the judiciary on this matter. The potential impact has generated case law that uses the Bakke case as its basis for analysis. First, the notion of race being a “plus” factor and not weighted as an individual benefit for admission has proven to be problematic.Such an idea proclaims race as just another element of signifying diversity rather than an attribute of greater intrinsic value that acknowledges one’s historical disadvantage or potential lack of access to a quality educational foundation. Attorneys for universities across the country have the charge of advising their admissions offices that they can continue to use race as a plus factor but must not expressly quantify it (Dorf, 2003). The use

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of precise language that avoids the numeric significance of any threshold, now dominates so as to comply with Bakke’s prohibition of quota systems. In other words, linguistic benchmarks such as "critical mass" are acceptable whereas point systems that give extra points for race are not (Dorf, 2003). The 1992 Hopwood Case was a case about racial discrimination.Cheryl Hopwood and three other students had sued the University of Texas for reverse discrimination. According to the process of how they were accepted the applicants were “color coded” (Savage, 1996). The Fifth Circuit ruled in her favor and stated that race may not be a factor when choosing applicants for admissions (Savage, 1996). The overall impact of Bakke on Hopwood is that diversity in gender, race, and ethnicity is becoming more known because of the Bakke case. Hopwood saw that Mr. Bakke was in the same field she was and felt her rights were also violated. As stated by Rudenstein (2009) from the diversity web, “The U.S. Court of Appeals for the Fifth Circuit ruled that the University of Texas may not consider race as a factor in its law-school admissions, despite the university's assertion of a compelling interest in fostering student diversity” (paragraph 2).

Like the Bakkecase, race may just be used as a plus factor but nothing more. In a more recent case, like Gratz v. Bollinger, anadmissions policy for the University of Michigan College of Literature, Science, and the Arts (LSA) was declared in violation of the Equal Protection Clause. The Court ruled again that race may only be used as one factor for purposes of diversity LSA’s current admissions policy did not provide the individualization that is needed to achieve educational diversity as Justice Powell had intended in Bakke. Analogously, in Grutter v. Bollinger, the petitioner Grutter filed claim of racial discrimination in violation of the Fourteenth Amendment, against University of Michigan Law School. The Law School used race as a mere factor in educational diversity as intended by Justice Powell and therefore did not in this instance

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violate the Equal Protection Clause. In fact, its admissions policy was in compliance with guidelines set forth in Bakke. Conclusion By virtue of stare decisis, Bakke remains the binding precedent that establishes the benchmark against which other higher education affirmative action decisions were/are measured (Kaplin & Lee, 2007). In light of Bakke, college and university professionals have to be cautious in their methods of promoting diversity as the courts are still indecisive on how affirmative action should play a role in encouraging diversity. The ultimate resolution of the affirmative action debate depends upon how the Supreme Court will interpret the Equal Protection Clause of the Fourteenth Amendment. One competing perspective on this subject views the Fourteenth Amendment and other federal anti-discrimination laws as creating an obligation to eliminate racial discrimination and the historical disadvantages that minorities still endure. Another perspective views that all institutional decisions must be “color-blind” and free from any government imposed requirements. The latter perception ignores the realities of race in America. Given the history of racial discrimination and the legacy of segregation in this country, a minority applicant’s ethnicity and/or race is inextricably intertwined with that individual’s identity. The Bakke case, in its own unique way, attempts to acknowledge such an understanding.

BakkeAnalysis & Impact 11 References Answers.com (2009). U.S. History Encyclopedia. Retrieved February 4, 2009 from http://www.answers.com/topic/bakke-v-regents-of-the-university-of-california American Council on Education (2000). Does Diversity Make a Difference? Retrieved February 2, 2009 from http://www.aaup.org/NR/rdonlyres/97003B7B-055F-4318-B14A5336321FB742/0/DIVREP.PDF Ball, H. (2000). The Bakke Case: Race, Education, and Affirmative Action. Lawrence, KS: University Press of Kansas. Coleman, A. L., Palmer, S. R., & Richards, F. S. (2005). Federal Law and Recruitment, Outreach, and Retention: A Framework for Evaluating Diversity-Related Programs. Washington, DC: The College Board. Dorf, M. C. (2003). Making sense of the Supreme Court's college admissions rulings Retrieved February 7, 2009 from http://www.cnn.com/2003/LAW/06/25/findlaw.analysis.dorf.affirmative/ GRATZ et al. v. BOLLINGER et al. (2009). Find Law for Legal Professionals. Retrieved February 7, 2009 from http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=539&invol=244. Eckes, S. E., (2004). Race-Conscious Admissions Programs: Where Do Universities Go From Gratz and Grutter? Journal of Law and Education, (33). Infoplease. (2009). Regents of the University of California v. Bakke (1978). Pearson Education. Retrieved February 4, 2009 from: http://www.infoplease.com/us/supremecourt/cases/ar32.html Kaplin, W., & Lee, B. (2007). The Law of Higher Education (4th ed.).

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San Francisco: Jossey-Bass. Kommers, D. P. & Finn, J. E. (1998). American Constitutional Law: Essays, Cases, and Comparative Notes. Belmont, CA: Wadsworth Publishing. Landmarkcases.org. (2009). Regents of the University of California v. Bakke: Background Summary and Questions. Retrieved February 4, 2009 from: http://www.landmarkcases.org/bakke/opinion.html McCormack, W. (1978). The Bakke Decision: Implications for Higher Education Admissions. Washington, D.C.: American Council on Education and Association of American Law Schools. OYEZ Project: U.S. Supreme Court Media. (2009). Regents of the University of California v. Bakke. Retrieved February 4, 2009, from: http://www.oyez.org/cases/19701979/1977/1977_76_811/ Parks, W. R. (2003, June). Diversity as an Issue in Law School Admissions: “The Diversity Card (not the Race Card)”. Paper presented at the meeting of the Southern Association of Prelaw Advisors Annual Meeting 2003. Pohlman, H. L. (1993). Political Thought and the American Judiciary. Boston: University of Massachusetts Press. Rosenblum, V. G. (2001). Surveying the Current Legal Landscape for Affirmative Action in Admissions. Retrieved February 2, 2009 from www.nacua.org/meetings/virtualseminars/july2003/documents/27jcul_709.pdf. Rudenstine, N. (2009, January 20). Why a Diverse Student Body is So Important. Retrieved February 7, 2009from http://www.diversityweb.org/research_and_trends/political_legal_issues/affirmative_actio n_policies/why_diverse_important.cfm Savage, D. (1996). Court Lets Stand Ruling Against Race Preference. AAD Project. Retrieved

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February 7, 2009 from http://aad.english.ucsb.edu/docs/Hopwood.html Schuck, P. (2002). Affirmative Action: Past, Present and Future. Yale Law and Policy Review, 20 (1). Retrieved February 6, 2009 from http://www.lexis-nexis.com Shea, R. H. (2003). Split Decision: The Supreme Court Rules on Affirmative Action in HigherEducation Admission. Retrieved February 4, 2009 from http://www.usnews.com/usnews/news/articles/affirm_030623.htm