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UNIVERSITY OF CALIFORNIA REGENTS v. BAKKE (1978)

Like abortion, affirmative governmental aid to sectors of the citizenry discriminated against in the past remains a contentious issue. In 1978, the best the Court could do to balance equitable assistance with the rights of those not so aided was the decision in University of California Regents v. Bakke, in which one justice cobbled together parts of different opinions by each of two four-justice minorities. The result satisfied almost no one, and facing recent split lower court decisions on this issue, the court will soon address the matter of affirmative action again.

In the Bakke case, the protagonists could not even agree on terminology: was it benign affirmative action, or punitive reverse discrimination? Was the U.S. Constitution color blind, or were racial distinctions permissible in an increasingly diverse society? Did racial quotas establish "benign discrimination," or was that very phrase itself an oxymoron? What's die difference between a quota and a goal?

The man who provoked one of the hottest debates over race in America was Allan Bakke. Nearly six feet tall, with the blue eyes and blond hair of his Norwegian forbears, Bakke personified old-line white America. Beyond his physical attributes, Bakke boasted an academic and professional biography characteristic of the upwardly mobile middle-class American. Financing his engineering education at the University ot Minnesota by service in the National Guard, he fulfilled his obligation to the military by four years of duty, including two in Vietnam. On separation, he got a job with NASA, married, and had a family. Allan Bakke, however, held a personal ambition widely different from his engineer colleagues: he wanted to become a physician.

Bakke prepared for the admissions process by taking courses in chemistry and biology, volunteering in hospitals, notably by working in the emergency wards in contact with the victims of the most gruesome accidents. In 1972, at age thirty-three, he applied to the new medical school at the University of California at Davis. He scored in the ninetieth percentile—the top 10 percent—on his MCATs; his undergraduate and work records were exemplary; his recommendations were strong. He was rejected. He tried again the next year, in 1973. The result was the same. Bakke sued.

The focus of his ire and his constitutional stand was a program at the Davis Medical School that set aside sixteen slots for minority candidates—Asians, African-Americans, Mexican Americans, and American Indians. The MCAT score among the applicants admitted through the special program was the thirtieth percentile. Bakke was outraged. "A new racial bias in favor of minorities," he insisted, "is not a just situation." The California Supreme Court agreed with him, and the university appealed to the U.S. Supreme Court.

Four justices would uphold the Davis system set aside for minority candidates; four justices would reiect any race-based system of affirmative action. There was one balance weight: the Virginian Lewis F. Powell. Powell had been appointed to tile Court by Richard Nixon in 1972 after a career in private practice in Richmond, where he had also been chairman of the board of education that desegregated the school after Brown. His conduct and decisions had been charactered as "pragmatic conservatism." The rate of affirmative action in American education—and potentially other spheres of life—rested in his hands.

Powell wanted to strike down any quota system like that at the University of California at
Davis, but he did not want to end affirmative action programs entirely. His solution seems simple in retrospect, but in tact it was the tortured result of eighteen months of argument among the nine justices and a similarly long debate among Powells four clerks and the justice himself. Four justices joined Powell in condemning quotas and college admissions systems that singled out race as the defining element. That made a majority against Davis and in ravor of Allan Bakke: Bakke won his case. However, four justices concluded that it was permissible to allow considerations of race as one element in a constellation of characteristics, talents, and accomplishments that would bring to campuses a much-sought-after and educationally enriching diversity. That made a majority in favor of affirmative action. In the end, Bakke had won, bur so had affirmative action.

Landmark cases in America have for the most part reflected issues of domestic concern-matters ot constitutional interpretation that require definition in our lives, and within our borders. As the new century begins, however, geographic borders between countries will become increasingly blurred as rapidly developing technology expands the American community into a more global one. Landmark cases of the twenty-first century are sure to include the resolution ot disputes oyer intellectual property rights and determining the boundaries of international law. The twenty-first-century American lawyer will need broad expertise and a sound knowledge of both American and international law.

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