This month’s twentieth anniversary of the Supreme Court decision in
Bakke v. University of California is an odd occasion to commemorate.
The Bakke case is the earliest in which the Supreme Court directly
addressed affirmative action. But like much of the affirmative action
debate, Bakke is as symbolic as it is real. Appropriately, given its
resolution at the time, the Bakke case presents multiple meanings today.
Retrospectively, Bakke may represent the beginning of the end for
the civil rights movement because the Supreme Court signaled, at best,
a begrudging acceptance of remedies for racial discrimination that
themselves took race into account. Prospectively, Bakke offers an
opportunity to confront the challenges of achieving racial justice
through pragmatic traditions.
The Court was highly divided over Bakke. It was faced with the
claim of so-called “reverse discrimination” brought by Allan Bakke, a
White, male, thirty-seven-year-old professional engineer whose
application to the University of California-Davis medical school had
been turned down twice. The school had implemented an affirmative
action program only shortly before Bakke challenged it. He alleged he
was excluded due to affirmative action for people of color.
Four justices led by Justices William Brennan and Thurgood Marshall
voted to approve affirmative action principles as constitutional.
Justice Brennan stated that the medical school “had a sound basis
for believing that the problem of underrepresentation of minorities was
substantial and chronic and that the problem was attributable to
handicaps imposed by past and present racial discrimination…. The
practice of medicine in this country was largely the prerogative of
[W]hites.”
Marshall said, “During most of the past 200 years, the Constitution
as interpreted by this Court did not prohibit the most ingenious and
pervasive forms of discrimination against the Negro. Now, when a State
acts to remedy the effects of that legacy of discrimination, I cannot
believe that this same Constitution stands as a barrier.”
Another four justices voted to strike down the specific affirmative
action plan as unconstitutional. They reserved judgment on other plans,
but their disapproval was apparent. justice William Rehnquist, for
example, would later vote consistently against affirmative action.
