Regents of the University of California v. Bakke

Regents of the University of California v. Bakke, 438 U.S. 265 (1978), was a landmark decision by the Supreme Court of the United States that involved a dispute over whether preferential treatment for minorities could reduce educational opportunities for whites without violating the Constitution. It upheld affirmative action, allowing race to be one of several factors in college admission policy. However, the court ruled that specific racial quotas, such as the 16 out of 100 seats set aside for minority students by the UC Davis School of Medicine, were impermissible.

Although in Brown v. Board of Education the Supreme Court had outlawed segregation in schools and had ordered school districts to take steps to ensure integration, the question of the legality of voluntary affirmative action programs initiated by universities remained unresolved. Proponents deemed such programs necessary to make up for past discrimination, while opponents believed they violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. A previous case that the Supreme Court had taken in an attempt to address the issue, DeFunis v. Odegaard (1974), had been dismissed on procedural grounds.

Allan P. Bakke (), an engineer and former Marine officer, sought admission to medical school but was rejected for admission partly because of his age — Bakke was in his early 30s while applying, which at least two institutions considered too old. After twice being rejected by the University of California, Davis, he brought suit in state court challenging the constitutionality of the school's affirmative-action program. The Supreme Court of California struck down the program as violative of the rights of white applicants and ordered Bakke admitted. The U.S. Supreme Court accepted the case amid wide public attention.

The ruling on the case was highly fractured. The nine justices issued a total of six opinions. The judgment of the court was written by Justice Lewis F. Powell Jr.; two different blocs of four justices joined various parts of Powell's opinion. Finding diversity in the classroom to be a compelling state interest, Powell opined that affirmative action in general was allowed under the Constitution and the Title VI of the Civil Rights Act of 1964. Nevertheless, UC Davis's program went too far for a majority of justices; it was struck down and Bakke was admitted. The practical effect of Bakke was that most affirmative action programs continued without change. Questions about whether the Bakke case was merely a plurality opinion or binding precedent were addressed in 2003 when the court upheld Powell's position in the majority opinion of Grutter v. Bollinger. However, in 2023, the Supreme Court reversed that position, finding that affirmative action in student admissions impermissibly violated the Equal Protection Clause of the Fourteenth Amendment in Students for Fair Admissions v. Harvard.

Background State of the law

In Brown v. Board of Education (1954), the Supreme Court of the United States ruled segregation by race in public schools to be unconstitutional. In the following fifteen years, the court issued landmark rulings in cases involving race and civil liberties, but left supervision of the desegregation of Southern schools mostly to lower courts.Wilkinson, p. 79. Among other progressive legislation, Congress passed the Civil Rights Act of 1964,Wilkinson, p. 24. Title VI of which forbids racial discrimination in any program or activity receiving federal funding.Ball, p. 6. By 1968, integration of public schools was well advanced. In that year, the Supreme Court revisited the issue of school desegregation in Green v. County School Board, ruling that it was not enough to eliminate racially discriminatory practices; state governments were under an obligation to actively work to desegregate schools.Green v. County School Board, 391 U.S. 430 (1968). The school board in Green had allowed children to attend any school, but few chose to attend those dominated by another race.Green, 391 U.S. at 441. In 1970, in Swann v. Charlotte-Mecklenburg Board of Education, the Supreme Court expanded the equitable powers of the district courts by upholding a district court order for busing of students as an appropriate remedy to desegregate a school system.Schwartz, pp. 28–29.Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1 (1970).

Although public universities were integrated by court decree, selective colleges and graduate programs, and the professions which stemmed from them, remained almost all white. Many African Americans had attended inferior schools and were ill-prepared to compete in the admissions process. This was unsatisfactory to many activists of the late 1960s, who protested that given the African American's history of discrimination and poverty, some preference should be given to minorities. This became a commonly held liberal position, and large numbers of public and private universities began affirmative action programs.Ball, pp. 3–10. Among these were the UC Davis School of Medicine (UC Davis or "the university"), which was founded in 1968 and had an all-white inaugural class. The faculty was concerned by this, and the school began a special admissions program "to compensate victims of unjust societal discrimination".Bakke, 238 U.S. at 272–275. The application form contained a question asking if the student wished to be considered disadvantaged, and, if so, these candidates were screened by a special committee, on which more than half the members were from minority groups.Bakke, 238 U.S. at 274. Initially, the entering class was 50 students, and eight seats were put aside for minorities; when the class size doubled in 1971, there were 16 seats that were to be filled by candidates recommended by the special committee.Bakke, 438 U.S. at 275. While nominally open to whites, no one of that race was admitted under the program, which was unusual in that a specific number of seats were to be filled by candidates through this program.Schwartz, p. 4.

The first case taken by the Supreme Court on the subject of the constitutionality of affirmative action in higher education was DeFunis v. Odegaard (1974).DeFunis v. Odegaard, 416 U.S. 312 (1974). Marco DeFunis, a white man, had twice been denied admission to the University of Washington School of Law. The law school maintained an affirmative-action program, and DeFunis had been given a higher rating by admissions office staff than some admitted minority candidates. The Washington state trial court ordered DeFunis admitted, and he attended law school while the case was pending. The Washington Supreme Court reversed the trial court, but the order was stayed, and DeFunis remained in school. The U.S. Supreme Court granted review and the case was briefed and argued, but by then, DeFunis was within months of graduation. The law school stated in its briefs that, even if it won, it would not dismiss him.DeFunis, 416 U.S. at 314–317. After further briefing on the question of mootness, the Supreme Court dismissed the case, 5–4, holding that as DeFunis had almost completed his studies, there was no longer a case or controversy to decide.DeFunis, 416 U.S. at 319–320. Justice William Brennan, in an opinion joined by the other three members of the minority, accused the court of "sidestepping" the issues, which "must inevitably return to the federal courts and ultimately again to this court".Ball, pp. 22–45.DeFunis, 416 U.S. at 350.

Allan Bakke Allan Paul Bakke (born 1940), a white male, applied to twelve medical schools in 1973. He had been a National Merit Scholar at Coral Gables Senior High School. Bakke attended the University of Minnesota for his undergraduate studies, deferring tuition costs by joining the Naval Reserve Officers Training Corps. He graduated from the University of Minnesota in 1963 with a 3.51 GPA. In order to fulfill his ROTC requirements, he joined the Marine Corps and served four years, including a seven-month tour of duty in Vietnam as a commanding officer of an anti-aircraft battery. In 1967, having achieved the rank of captain, he was granted an honorable discharge. Bakke then worked as an engineer at NASA. He stated that his interest in medicine started in Vietnam, and increased at NASA, as he had to consider the problems of space flight and the human body there. But twelve medical schools rejected his application for admission.

Bakke had applied first to the USC Keck School of Medicine and Feinberg School of Medicine, in 1972, and both rejected him, making a point of his age, with Northwestern writing that it was above their limit. Medical schools at the time openly practiced age discrimination.

Bakke applied late to UC Davis in 1973 because his mother-in-law was ill.Santa Clara Law Review, p. 231. This delay may well have cost him admission: although his credentials were outstanding even among applicants not part of the special program, by the time that his candidacy was considered under the school's rolling admissions process, there were few seats left.Schwartz, p. 5. His application reflected his anxiety about his age, referring to his years of sacrifice for his country as a cause of his interest in medicine.

Bakke received 468 points out of a possible 500 on the admissions committee's rating scale in 1973. Earlier in the year, a rating of 470 had won automatic admission, with some promising applicants being admitted with lower scores. Bakke had a science GPA of 3.44 and an overall GPA of 3.46 after taking science courses at night to qualify for medical school. On the Medical College Admission Test (MCAT), Bakke scored in the 97th percentile in scientific knowledge, the 96th percentile in verbal ability, the 94th percentile in quantitative analysis, and the 72nd percentile in general knowledge.Bakke, 438 U.S. at 276. Bakke's MCAT score overall was 72; the average applicant to UC Davis scored a 69 and the average applicant under the special program a 33.Ball, p. 52. In March 1973, Bakke was invited to UC Davis for an interview. Dr. Theodore West, who met with him, described Bakke as “a well-qualified candidate for admission whose main hardship is the unavoidable fact that he is now 33. … On the grounds of motivation, academic records, potential promise, endorsement by persons capable of reasonable judgments, personal appearance and decorum, maturity, and probable contribution to balance in the class, I believe Mr. Bakke must be considered as a very desirable applicant and I shall so recommend him.” About two months later in May 1973, Bakke received notice of his rejection.

Bakke complained to Dr. George Lowrey, chairman of the admissions committee at the medical school, about the special admissions program. At Lowrey's request, Assistant Dean Peter Storandt told Bakke that his candidacy had come close and encouraged him to reapply. If he was not accepted the second time, "he could then research the legal question. He had been a good candidate. I thought he'd be accepted and that would end the matter."Benfell, pp. 17, 52–54. Storandt also gave Bakke the names of two lawyers interested in the issue of affirmative action. The general counsel for the University of California said, "I don't think Storandt meant to injure the university. It's simply an example of a non-lawyer advising on legal matters." Storandt stated, "I simply gave Allan the response you'd give an irate customer, to try and cool his anger. I realized the university might be vulnerable to legal attack because of its quota, and I had the feeling by then that somebody somewhere would sue the school, but I surely didn't know this would be the case." Storandt was demoted and later left the university. According to Bernard Schwartz in his account of the Bakke case, Storandt was fired.Schwartz, pp. 6–7.