Affirmative action in medical school and law school admissions decisions was deemed to be constitutional in the University of California v. Bakke and Grutter v. Bollinger Supreme Court decisions. However, there was a time limit mentioned in the Grutter decision.
With four new justices affirmed to the Supreme Court since Grutter, the time is ripe for a new look at the constitutionality of affirmative action in graduate and even undergraduate school admissions decisions.
In fact, the Supreme Court heard oral arguments in Fisher v. University of Texas on December 10, 2015 where affirmative action was once again the center of controversy.
A review of the jurisprudence of affirmative action on college and graduate admissions is timely and is especially pertinent to those of us who work in undergraduate and graduate medical education. In this article, we will review the Bakke case.
The history of affirmative action in graduate and undergraduate school admissions has been characterized by heated debate. Proponents of affirmative action argue that it is necessary to ensure a diverse class make up which is essential in furthering the educational mission of colleges and graduate schools. Proponents also claim that affirmative action is necessary to overcome past practices which have discriminated against certain groups and kept them from realizing the benefits of a college or graduate school education.
The critics of affirmative action claim the policy is nothing more than reverse discrimination, which, in turn, punishes applicants who are not a member of the targeted groups. Critics also claim the policy of affirmative action violates the equal protection clauses of the Constitution and thus, is illegal.
In 1978, the Supreme Court addressed the issue of affirmative action in graduate school admissions in University of California Regents v. Bakke.
The Bakke Case
In 1973, Allan Bakke, a white male, applied to the medical school of the University of California at Davis (UC Davis). Despite being a strong candidate, he was rejected. Bakke’s rating of 468 out of 500 on the UC Davis rating system was just below the 470 score needed for admission at the time his application was complete. However, at the time he was rejected, there were still four slots available in a special admissions program, which were available to minorities as a racial and ethnic quota. After his rejection, Bakke wrote a letter to Dr. George Lowrey, Associate Dean and Chairman of the Admissions Committee, claiming “…the special admissions program operated as a racial and ethnic quota.”
When Bakke reapplied to Davis in 1974, his faculty interview by a quirk of fate was with Dr. Lowrey who found Bakke to be “rather limited in his approach” to the problems of the medical profession and found disturbing Bakke’s “very definite opinions which were based more on his personal viewpoints than upon a study of the total problem.” Dr. Lowrey rated Bakke at a lower level and, as a result, Bakke was again rejected for admission by the school.
“In both years, applicants were admitted under the special program with grade point averages, MCAT scores, and benchmark scores significantly lower than Bakke’s.” For example, in 1973, Bakke’s grade point average was 3.51 with MCAT scores of 96 (verbal), 94 (quantitative), 97 (science), and 72 (general information). This was compared to special admittees of 2.62, 46, 24, 35, and 33. In 1974, the special admittees GPA and scores were 2.42, 34, 30, 37, and 18.
After his 1974 rejection, Bakke filed a lawsuit in the Superior Court of California alleging that the special admissions program of the Medical School caused him to be rejected on the basis of his race. Bakke claimed that his rights were violated under the Equal Protection Clause of the Fourteenth Amendment. Bakke also claimed his rights were violated under the California Constitution (Art. I, 21) and 601 of Title VI of the Civil Rights Act of 1964, but for the purposes of this paper, the first claim is dispositive.
The trial court held that the special admissions program violated the Federal Constitution based on the finding that the special program was functioning as a racial quota whereby minority applicants were being rated only against each other and there were 16 spaces in the medical school class being reserved only for them. However, the court denied Bakke’s request for an injunction to compel his admission to the school holding “…that he had failed to carry his burden of proving that he would have been admitted but for the existence of the special program.”
Because he had been denied admission to the school, Bakke appealed.
UC Davis appealed from (1) the decision that its special affirmative action program was unlawful and (2) from the order preventing the school from using race in making its admission decisions. The Supreme Court of California took the case directly from the trial court “because of the importance of the issues involved.”
The California Supreme Court ruled that the Equal Protection Clause of the Fourteenth Amendment had been violated holding that “no applicant may be rejected because of his race, in favor of another who is less qualified, as measured by standards applied without regard to race.” This court also held that since Bakke had shown that the school had discriminated against him because of his race, the burden of proof was on the school to show that he would have not been admitted even if there were no special admissions program. Since the school conceded that it could not prove this issue, the California court directed the trial court to order Bakke’s admission to the Medical School. The United States Supreme Court granted certiorari.
In an opinion authored by Mr. Justice Powell, the Court held that: (1) the special admissions program of UC Davis was unconstitutional, but (2) race may be used as one of several factors by which a school can make decisions on admissions, and (3) affirmed the decision to allow Bakke to be admitted to the school.
According to the Court, the fatal flaw of the UC Davis special admissions program was the quota of 16 slots reserved for the minority students, which resulted in a violation of individual rights of those applicants who would not be allowed to compete for those slots based solely on their race. In its decision, the Court made clear that race could be used in a properly devised admissions program since racial diversity in the school’s case was a substantial state interest which would be legitimately served by taking race into account in the admissions process.
During arguments, UC Davis had four reasons to justify the special admissions program. These were (1) “[to reduce] the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession;” (2) countering the effects of societal discrimination; (3) increasing the number of physicians who will practice in communities currently underserved; and (4) obtaining the educational benefits that flow from an ethnically diverse student body.
As far as the Supreme Court was concerned, the first justification immediately failed. “Preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.”
Historically, any system designed to favor any particular group at the expense of others who were innocent of any perceived victimization of the favored group required certain findings. The Court made clear that UC Davis was in no position to make such findings. Justice Powell stated:
We have never 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.
Only after such findings would the State’s interest be substantial enough to justify preferential treatment of the injured parties at the expense of so called innocent parties. Also, the remedy chosen would have to be one which works the least possible harm to those who were now being discriminated against. The role of UC Davis was in education of medical students, not in correcting perceived societal wrongs.
The Court, however, did concede that attainment of ethnic diversity in the student body was a constitutionally permissible goal for an institution of higher learning. “Academic freedom, though not a specifically enumerated constitutional right, long has been viewed as a special concern of the First Amendment. The freedom of a university to make its own judgments as to education includes the selection of its student body.”
The Court felt that genuine diversity would not be attained with the UC Davis program which looked only at race and ethnicity. As an example of an admissions program which was tailored for diversity that would meet constitutional muster, the Court cited the Harvard College program.
“[At Harvard, w]hen the Committee on Admissions reviews the large middle group of applicants who are “admissible” and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates’ cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer. [The] awareness [of the necessity of including more than a token number of black students] does not mean that the Committee sets a minimum number of blacks or of people from west of the Mississippi who are to be admitted…
According to the Court, this system allows race to be used as a factor in the decision making process since it is not the sole criterion in deciding who will get that admissions slot. There would be no unequal treatment under the Fourteenth Amendment with this system. As Justice Powell noted in his opinion,
“[A] great deal of learning occurs informally. It occurs through interactions among students of both sexes; of different races, religions, and backgrounds who come from cities and rural areas, from various states and countries; who have a wide variety of interests, talents, and perspectives; and who are able, directly or indirectly, to learn from their differences and to stimulate one another to reexamine even their most deeply held assumptions about themselves and their world.”
The Bakke decision has been the law since 1978. It is interesting to note what Supreme Court Justices have said about Bakke in subsequent decisions and writings. In a commentary, current Supreme Court Justice Scalia said “Justice Powell’s opinion [is] ‘the law of the land.’” 1979 Wash. U.L.Q. 147,148 (1979). Justice Stevens concurred in an opinion written by Justice Brennan, which cited Bakke whereby “a diverse student body contributing to a ‘robust exchange of ideas’ is a ‘constitutionally permissible goal’ on which race-conscious university admissions programs may be predicated.” Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 568 (1990).
Justice O’Connor in Johnson v. Transp. Agency, 480 E.S. 616, 656 (1987) concurring “approv[ed] gender-conscious promotion where defendant ‘tried to look at the whole picture, the combination of [her] qualifications and [plaintiff’s] qualifications, their test scores, their experience, their background, [and] affirmative action matters.”
Over the next 20 years, debate continued. Since the Fourteenth Amendment was involved, strict scrutiny needed to be applied if it was to be ignored. Was diversity of the student body a compelling enough State interest to allow a narrowly tailored race-based action whereby an individual’s race could be used to decide whether or not he would be admitted to graduate school? Was Justice Powell’s decision just dictum, or was it to be the law of the land?
In subsequent decisions, disagreement occurred as to whether or not diversity of the student body was truly a compelling state interest. In Hopwood v. Texas,  the Court of Appeals held that diversity of the student body is not a compelling state interest. The Hopwood Court concluded “that any consideration of race or ethnicity by the law school for the purpose of achieving a diverse student body is not a compelling interest under the Fourteenth Amendment. Justice Powell’s argument in Bakke garnered only his own vote and has never represented the view of a majority of the Court in Bakke or any other case.”
Within the general principles of the Fourteenth Amendment, the use of race in admissions for diversity in higher education contradicts, rather than furthers, the aims of equal protection. Diversity fosters, rather than minimizes, the use of race. It treats minorities as a group, rather than individuals. It may further remedial purposes but, just as likely, may promote improper racial stereotypes, thus fueling racial hostility.
However, in Smith v. University of Washington Law School, the Court of Appeals held that diversity was a compelling State interest. The Smith Court held that “the Fourteenth Amendment permits University admissions programs which consider race for other than remedial purposes, and educational diversity is a compelling governmental interest that meets the demands of strict scrutiny of race-conscious measures.”
Interestingly, before the Smith Court made its decision, the Washington State legislature passed Initiative Measure 200 which stated, “[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.”
With the passage of this new legislation, the Law School voluntarily changed its admissions policy so that race was no longer a considered factor.
Since there was disagreement among appellate courts on this important question, the Supreme Court decided to better resolve the issues in the case of Barbara Grutter.
In my next article, the Grutter case will be discussed.
 University of California v. Bakke, 438 U.S. 265 (1978).
 Id. at 276.
 132 Cal. Rptr. 680, 686.
 Section 1 of the Fourteenth Amendment states “. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
 There was a total of 100 slots for the first year class. Sixteen slots were reserved for minority students in the special admissions program although minority students were also allowed to compete for the other 84 slots. The non-minority students were limited to competing for only the 84 slots.
 Bakke at 279.
 By granting certiorari, the Supreme Court agreed to hear arguments and rule on the issues.
 University of California v. Bakke. 438 U.S. 265 (1978).
 Ronald Rotunda, Modern Constitutional Law, West Group (2000), p. 661.
 Bakke at 307.
 In this regard, UC Davis’ selection of Negroes, Mexican-Americans, American Indians and Asians as the groups eligible for its special admissions program was difficult to justify especially in light of the fact that many Asians were eligible for admission under the regular admissions process. Id.
 Rotunda at 662.
 Id. at 663.
 Id. at Justice Powell quoting from Professor Gurin, President of Princeton University
 Korematsu v. United States, 323 U.S. 214 (1944). In Korematsu, pressing public necessity was the standard used to justify racial discrimination. This was the first case to purport that strict scrutiny would be the standard used to justify any governmental discrimination based on race. Id.
 Hopwell v. Texas, 78 F.3d 932 (C.A.5 1996)
 Id. at 944.
 Id. at 945.
 Smith v. University of Washington Law School, 233 F.3d 1188, (C.A.9 2000)
 Id. at 1201.
 Wash. Rev. Code sec. 49.60.400(1).
by Darryl S. Weiman, M.D., J.D.
Professor, Cardiothoracic Surgery, University of Tennessee Health Science Center and Chief of Surgery, VAMC Memphis, TN