Justice Powell’s pivotal opinion has provoked a wide range of responses.
Scholars of varying ideological perspectives have found it wanting in terms of judicial craft. Professor (later Judge) Harry T. Edwards gave the opinion “poor marks.”4 Professor (later Judge) Guido Calabresi derided it as “misguided.”5 Professor Vincent Blasi said that it constituted “a disturbing failure … to give coherent, practical meaning to our most important constitutional ideals.”6 Professor Ronald Dworkin complained that Powell’s opinion was “without sound intellectual foundation.”7
Some proponents of affirmative action initially interpreted the Powell opinion as a major defeat. The Reverend Jesse Jackson called for demonstrations against it. Lerone Bennett, Jr., charged that it would send blacks “back to the end of the line.”8 The venerable chair of the NAACP Legal Defense and Educational Fund, William T. Coleman, Jr., complained that Bakke “turns the Fourteenth Amendment on its head.…It invokes an amendment which was adopted primarily and principally to benefit blacks to overturn state action which does just that.”9
Other proponents of affirmative action accentuated what they perceived as the essential positive feature of the decision: its holding that, properly cabined, race could play a legitimate role in the admissions process for institutions of higher education. United States Attorney General Griffin Bell portrayed Bakke as “a great gain for affirmative action. It’s the first time the Supreme Court ever upheld affirmative action and it did so in as strong a way as possible.”10 The attorney general’s remarks put a good face on disappointment. After all, in its brief to the Supreme Court, the Department of Justice had supported the affirmative action program that Powell invalidated. But pragmatic proponents of affirmative action realized that it made little sense, given their aims, to emphasize what they disliked in the ruling. Instead they trumpeted what they saw as its upside. “The most important thing,” Vernon Jordan, then the president of the National Urban League, declared, “is that a majority of the Supreme Court backed the use of race as a permissible factor.”11
Stalwart opponents of racial affirmative action decried Bakke when it was announced, as they have done ever since. Professor (later Justice) Antonin Scalia mordantly remarked that while Powell’s opinion reads like “an excellent compromise between two committees of the American Bar Association on some insignificant legislative proposal,” it is “thoroughly unconvincing as an honest, hard-minded, reasoned analysis of an important provision of the Constitution.”12
Others, however, have praised the opinion as a feat of judicial statesmanship that produced a “Solomonic” compromise that reconciled antagonistic and deeply felt yearnings.13 Speculating that an outright victory for the university would have triggered an overwhelming legislative backlash, Professors Kenneth Karst and Harold W. Horowitz suggest that “Powell may have rescued affirmative action from death at the hands of the political process.”14 Another notable plaudit is offered by Professor Paul J. Mishkin, one of the authors of the Bakke brief for the University of California. Though Powell’s decision dealt a defeat to his client, Mishkin nonetheless concluded that the Court had reached a good result.
I consider the Court’s stance in Bakke—the ambivalent posture made possible by Justice Powell’s opinion … —to be a wise and politic resolution of an exceedingly difficult social problem. The Court took what was one of the most heated and polarized issues in the nation, and by its handling defused much of the heat. To lower the boil in the intense cauldron of race issues was … no mean nor easy achievement.15
Before I offer my take on Powell’s opinion, I shall describe it in more detail, an investment warranted in light of its significance.
Powell maintained that “racial and ethnic distinctions of any sort [by public authorities] are inherently suspect and thus call for the most exacting judicial examination.”16 He insisted that any and all racial distinctions should trigger the same searching judicial inquiry—“strict scrutiny.” Pursuant to strict scrutiny, judges jettison their usual deference to governmental conduct, their usual presumption that such conduct is legitimate. Applying strict scrutiny, judges are skeptical of the governmental conduct in question and indeed presume it to be illegitimate. Under strict scrutiny, a policy or decision is valid only if it is supported by a “compelling” justification and narrowly tailored to attain that goal.
Powell rejected the idea that racial distinctions benefiting racial minorities (“benign discrimination”) should be appraised differently, more tolerantly, than racial distinctions burdening them (“malign discrimination”). One theory that justifies distinguishing benign from malign discrimination in constitutional law is that the Equal Protection Clause of the Fourteenth Amendment was established specifically to benefit blacks, most of whom in the 1860s were just emerging from enslavement. Powell acknowledged that “many of the Framers of the Fourteenth Amendment conceived of its primary function as bridging the vast distance between members of the Negro race and the white ‘majority.’ ”17 He countered, however, that “it is not unlikely that among the Framers were many who would have applauded a reading of the Equal Protection Clause that states a principle of universal application and is responsive to the racial, ethnic, and cultural diversity of the nation.”18 Moreover, the text of “the Amendment itself was framed in universal terms, without reference to color, ethnic origin, or condition of prior servitude.”19
Furthermore, as far as Powell was concerned, whatever the situation was at the dawn of the Fourteenth Amendment, the country had moved on demographically, morally, politically, and legally. It was “no longer possible to peg the guarantees of the Fourteenth Amendment to the struggles for equality of one racial minority,” he maintained, because “the United States had become a Nation of minorities.”20 Powell portrayed America as a congery of minorities in which “each had to struggle … to overcome the prejudices not of a monolithic majority, but of a ‘majority’ composed of various minority groups of whom it was said … that a shared characteristic was a willingness to disadvantage other groups.”21 As the country filled “with the stock of many lands,” Powell contended, the reach of the Equal Protection Clause of the Fourteenth Amendment was gradually, and rightly, applied to all seeking protection from official racial discrimination. Dismissing originalist arguments in favor of an asymmetrical interpretation of the Fourteenth Amendment that would accord special solicitude to racial minorities, particularly blacks, Powell averred that “the clock of our liberties … cannot be turned back to 1868.…It is far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded to others.”22
Another justification for treating racial distinctions benefiting racial minorities more tolerantly than racial distinctions benefiting whites rests on the belief that whites as a group can fend adequately for themselves in the arena of regular politics, while blacks and other discrete, insular, and historically stigmatized groups need judicial protection against prejudiced majorities.23 Powell rejected the sociology on which that theory rests. He saw no overweening white racial hegemony, instead perceiving that “the white ‘majority’ itself is composed of various minority groups, most of which can lay claim to a history of prior discrimination at the hands of the State and private individuals.”24 According to Powell, not only is it impossible to envision all of these groups receiving preferential treatment; more problematic for courts is the absence of any “principled basis for deciding which groups would merit ‘heightened judicial solicitude’ and which would not.” Powell feared that “courts would be asked to evaluate the extent of the prejudice and consequent harm suffered by various minority groups.” He anticipated that “as these preferences began to have their desired effect … new judicial rankings would be necessary.” He believed that “the kind of variable sociological and political analysis necessary to produce such rankings simply does not lie within judicial competence.” He thought that
“by hitching the meaning of the [Fourteenth Amendment] to these transitory considerations, [the Court] would be holding, as a constitutional principle, that judicial scrutiny of classification touching on racial and ethnic background may vary with the ebb and flow of political forces.”25 That, Powell concluded, would be wrong.
Having determined that all official racial discriminations are suspect, meaning presumptively invalid, Powell proceeded to acknowledge, in accordance with previous case law, that, under certain circumstances, some kinds of racial discrimination are justifiable. But the circumstances in which such justifications apply are exceptional. The state must show that it has a “compelling” reason to use a racial classification and that the use of the racial classification is narrowly tailored to accomplish the end that is sought.
Canvassing the rationales proffered by Davis to justify its special admissions program, Justice Powell rebuffed all but one. Davis asserted that its special admissions program was justified as a strategy for remedying the effects of past societal discrimination. This rationale is entitled to concentrated attention, because it was the one that the University of California and most observers saw as the principal justification for racial affirmative action. Its priority is clear in the brief for the Regents of the University of California:
I. The Legacy of Pervasive Racial Discrimination in Education, Medicine and Beyond Burdens Discrete and Insular Minorities, as Well as the Larger Society. The Effects of Such Discrimination Can Not Be Undone by Mere Reliance on Formulas of Formal Equality. Having Witnessed the Failure of Such Formulas, Responsible Educational and Professional Authorities Have Recognized the Necessity of Employing Racially-Conscious Means to Achieve True Educational Opportunity and the Benefits of a Racially Diverse Student Body and Profession.26
Elaborating, the principal writers of the brief, Paul Mishkin and Archibald Cox, observed that “the dismantling of the formidable structures of pervasive discrimination requires great endurance and the courage to maintain the necessary great effort.” They portrayed special assistance to racial minorities as an essential aspect of this dismantling of racial oppression. There is, they argued, “no substitute for the use of race as a factor in admissions if professional schools are to admit more than an isolated few applicants from minority groups long subjected to hostile and pervasive discrimination.” They contended that the outcome of the case would determine whether racial minorities “are to have meaningful access to higher education and real opportunities to enter the learned professions, or are to be penalized indefinitely by the disadvantages flowing from previous pervasive discrimination.” Repeatedly and insistently, the university’s lawyers championed the policy of showing special solicitude to racial-minority applicants to enable them to escape limitations imposed by deprivations rooted in past historical wrongs.
The brief of the United States as amicus curiae also stressed remedying historical societal discrimination as the main justification for affirmative action, asserting in pertinent part:
I. Race may be taken into account to counteract the effects of prior discrimination …
II. The University could properly conclude that minority-sensitive action was necessary to remedy the lingering effects of past discrimination.27
The brief averred that “the effects of racial discrimination are not easily eliminated,” that the Court had recognized “that simple elimination of future discrimination may well be insufficient to rectify what has gone before,” and that “mere neutrality often is inadequate.” In other words, like the university petitioner, the United States solicitor general gave priority to rectification as a justification for the special admissions program at Davis.
Powell rejected the rationale that justified affirmative action as a remedy for societal discrimination. The state, Powell maintained, certainly has a “substantial interest in ameliorating, or eliminating where feasible, the disabling effects of identified discrimination.”28 Here, however, the discrimination complained about had not been “identified” by legislative, judicial, or administrative findings of constitutional or statutory violations. Rather, on its own, Davis sought to assist in redressing what it perceived to be the general, systemic, ubiquitous discrimination that racial minorities have long confronted. To this Powell objected, writing that “ ‘societal discrimination’ is an amorphous concept of injury that may be ageless in its reach into the past.”29 He asserted, moreover, that the Court had never before “approved a classification that aids persons perceived as members of relatively victimized groups at the expense of other innocent individuals in the absence of judicial, legislative, or administrative findings of constitutional or statutory violations.”30 Here there were no such findings. Davis did not purport to have made any, and, according to Powell, it lacked the institutional capacity or authority to do so. Courts and legislatures can make such determinations, Powell maintained, but not educational institutions acting on their own. As Powell saw it,
the purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of “societal discrimination” does not justify a classification that imposes disadvantages upon persons like [Bakke], who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whatever groups are perceived as victims of societal discrimination.31
Another justification asserted by Davis but rejected by Powell was the aim of improving the delivery of health care to underserved black communities. The theory was that the training of more black physicians would enhance health care in the black communities in which these physicians were expected to practice. Powell found this rationale inadequate. Davis conceded that it could not assure that beneficiaries of the special admissions program would, in fact, “give back” by practicing in minority communities especially needful of their services. Furthermore, quoting Justice Mosk of the California Supreme Court, Justice Powell stated that
there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities.…An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to alleviation of the medical shortage than one who is chosen entirely on the basis of race and disadvantage.32
This brings us to the justification asserted by Davis that Powell accepted: the goal of attaining a diverse student body. Asserting that the authority of a university to select its own student body is an entailment of academic freedom that is protected by the First Amendment, Powell expressly championed granting deference on this score to the judgments of academic administrators. A university, he insisted, “must have wide discretion in making the sensitive judgments as to who should be admitted.”33 He recognized that that deference must be bounded, since “constitutional limitations protecting individual rights may not be disregarded.”34 But he believed that what he deemed to be a right to be assessed regardless of race could be subordinated somewhat by a university’s aim to create what it viewed as an optimal academic environment. Several universities, most notably Harvard and Princeton, argued that an optimal academic environment required the presence of various sorts of diversity, including racial diversity. Powell accepted this argument, saying that, as against Fourteenth Amendment Equal Protection concerns, a university’s desire for “diversity” “invokes a countervailing [First Amendment] constitutional interest.”35 Lauding “diversity,” Powell averred that “the atmosphere of speculation, experiment and creation—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.” Further, he maintained that, “in this light, [Davis] must be viewed as seeking to achieve a goal that is of paramount importance to the fulfillment of
its mission.”36 Attempting to give specificity to this “diversity” value, Powell stated that
an otherwise qualified medical student with a particular background—whether it be ethnic, geographic, culturally advantaged or disadvantaged—may bring to a professional school of medicine experiences, outlooks, and ideas that enrich the training of its student body and better equip its graduates to render with understanding their vital service to humanity.37
Having determined that “the interest of diversity is compelling in the context of a university’s admissions program,”38 Powell turned to whether Davis’s program was acceptably structured. He concluded that on this front it had failed. Recall what the Davis special admissions program did: it set aside sixteen of one hundred seats for qualified disadvantaged racial-minority candidates who were evaluated separately from the candidates competing for places in the regular admissions program. Powell found this arrangement to be inconsistent with the goal of attaining what he termed “genuine” diversity. “Genuine” diversity—“the diversity that furthers a compelling state interest”—encompasses “a far broader array of qualifications and characteristics of which racial and ethnic origin is but a single though important element.”39 Powell complained that insofar as Davis’s special program focused solely on racial and ethnic diversity, it hindered rather than furthered genuine diversity. Powell also objected to other features of the Davis program, such as the separate assessment of “special” as opposed to “regular” candidates and the fixed number of seats set aside for the affirmative action program.
Powell contrasted what he saw as Davis’s flawed plan to attain diversity with an acceptable, indeed exemplary, plan—the Harvard College admissions program. Powell was so impressed with Harvard’s description of its admissions philosophy that he appended it to his opinion. It read in pertinent part:
Race, Affirmative Action, and the Law Page 20