What Rights for Whites?

The Bakke case brings a troubling racial argument to the court

As dawn broke over the white-pillared U.S. Supreme Court one day last week, more than 100 spectators were already clustered on the granite steps, huddled in bed rolls or stamping their feet to ward off the autumn chill. By midmorning the crowd had doubled and doubled again, stretching across the court plaza all the way to First Street. Photographers maneuvered to capture celebrities as they arrived, including Senators Robert Griffin and Thomas Eagleton, and Mrs. Earl Warren, widow of the Chief Justice who presided over the historic school desegregation decision of 1954. As the crowds pressed forward, young demonstrators waved picket signs and chanted slogans.

Inside the court, every seat was taken by the time the principals began arriving. Archibald Cox, Harvard law professor, former Solicitor General and special Watergate prosecutor, was resplendent in black cutaway, striped tie and a matching gray crew cut. So was Wade McCree, in the Solicitor General's traditional morning coat. At precisely 10 that Wednesday morning, the court clerk intoned "Oyez, oyez," and the nine black-robed Justices suddenly appeared from behind red velvet curtains and settled into their seats at the elevated bench. The stage was set for what could turn out to be the most important civil rights case in a generation, Regents of the University of California v. Allan Bakke.

At a signal from Chief Justice Warren Burger, Cox began presenting the case of the university. He underlined immediately the importance of responding to the charge that a white male had been excluded from medical school by "reverse discrimination" favoring disadvantaged minority candidates who were, by traditional admission standards, less qualified than the white. Said Cox: "The answer which the court gives will determine, perhaps for decades, whether members of [racial] minorities are to have meaningful access to higher education." After a few minutes, Justice Byron White interrupted Cox to inquire about the adequacy of the trial record in lower courts. And then for two hours the Justices questioned the lawyers, Cox and McCree and Reynold Colvin, Bakke's San Francisco attorney.

From the questions it was clear that the Justices were struggling to adapt the most perplexing social questions into a manageable legal framework. They were obviously not comfortable. Justice Lewis Powell, normally the most courteous of Virginia gentlemen, uncharacteristically attacked Colvin: "We are here primarily to hear a constitutional argument," he said softly. "You have devoted 20 minutes to belaboring the facts, if I may say so. I would like help, I really would, on the constitutional issues."

Colvin could not help much. He focused his case simply on the interests of his client, Allan Bakke of Sunnyvale, Calif, a tall, blond engineer and father of two, who at 37 still harbors hopes of starting medical school. Bakke is largely a mystery to the world, for he has consistently refused requests for interviews. He earned two engineering degrees and fought as a Marine captain in Viet Nam, then decided to change careers. He started working as a hospital volunteer and taking science courses at night. In 1973 he applied to a dozen medical schools. By then he was already 33, and they all turned him down.

The most galling rejection came from the nearby University of California at Davis. Established in 1968, the medical school had enrolled only two blacks and one Chicano in its first two entering classes. So the faculty authorized a special admissions program for "individuals from disadvantaged educational, cultural and socioeconomic backgrounds"; soon it reserved 16 of 100 slots for them in each class. By 1974, the university was using application forms that asked for racial identification; the results made it clear that only blacks, Chicanes, American Indians and Asians need apply for the 16 places. The university never denied that by all the standard criteria--grades, test scores, benchmark totals--Bakke's record was better than that of many minority students enrolled. The special 16 in the 1973 class scored average aptitude percentile rankings of 35 in science and 46 in verbal skills; Bakke scored 97 in science and 96 in verbal skills.

Bakke decided to sue on the ground that he was a victim of race discrimination.* But the origins of his lawsuit are somewhat mysterious. An admissions officer at Davis, later fired, apparently encouraged Bakke to bring suit against the university. Was that an attempt to subvert the admissions program or simply an effort to get a court ruling on this complex issue? And why did the university virtually concede in court that Bakke would have been admitted in an open competition for the remaining 16 seats?

Ironically, it was the California Supreme Court, long regarded as perhaps the most liberal and forward-looking in the country, that upheld Bakke in a decisive 6-to-l opinion. Basing its decision on a rather literal reading of the 14th Amendment guarantee of equal protection under the law, the California court stated that the use of race as a criterion in any official program calls for judicial "strict scrutiny." Unless a "compelling state interest" can be demonstrated and there are no viable, nonracial alternative methods available, the use of race is forbidden. Here, the court ruled that the university had not exhausted alternative methods. Among its suggestions: more aggressive recruitment of minority applicants or remedial education programs, and, at bottom, special admissions purely by educational and economic disadvantage, not by race.

Disregarding the advice of many civil rights groups, which thought the Bakke case a weak one on which to base a major fight, the University of California decided to seek review by the U.S. Supreme Court. When the high court agreed to hear the case, some 130 organizations, ranging from the American Federation of Teachers to the Sons of Italy, moved in to state their views on the controversy. They submitted a record 58 friend-of-the-court briefs, 42 of them opposing Bakke.

Thus the Supreme Court had to confront once again the legacy of its 1954 ruling that American society must proceed "with all deliberate speed" toward racial desegregation. The courts spent years enforcing the promise of that ruling against various challenges and obstructions, but it became clear that repeated judicial pronouncements against segregation would never lead to an integrated society. Help arrived from the Executive Branch in the 1960s. Presidents Kennedy and Johnson issued executive orders requiring "affirmative action" by Government contractors to provide more jobs for minorities. Congress soon joined in, more regulations, followed, and affirmative action expanded to include women and to cover most areas of work and education.

To many Americans, affirmative action for the sake of equality seems a threat to the very concept of equality. If two people are equally qualified and one is favored over the other because of race or gender, is that not undemocratic and unfair? Says Martin S. Goldman, New England education director of the B'nai B'rith: "The evil is discrimination. One does not end discrimination by discriminating."

Indeed one does, retort the advocates, of affirmative action. Says Vernon Jordan, executive director of the National Urban League: "Opponents of affirmative-action programs live in some kind of dream world where people truly advance on their merits and all is efficiently governed by a neutral merit system. That world does not exist. Merit is socially defined." Colleges, for example, have traditionally favored not only middle-class males but also sons of alumni. For all the progress in desegregation, blacks still must surmount a crushing residue of two centuries of discrimination in acquiring the tools and attitudes required to compete in U.S. society. Without affirmative action, four California law deans jointly wrote last winter, enrollment in their schools would revert to nearly all-white classes.

Whatever the arguments, affirmative action is the law--or rather, a whole series of laws. Today overlapping state and federal agencies enforce reams of regulations, leading to complaints of wasteful paper work, unrealistic guidelines and interminable delay. The overall expense of affirmative action is incalculable. The University of Utah, for example, estimates its annual cost of maintaining compliance records at $100,000 a year. Yet enforcement is mostly a matter of exhortations or threats. Although the Office of Federal Contract Compliance says it has helped discrimination victims collect $159 million in back pay, only 15 of 30,000 businesses dealing with the Federal Government have ever lost a federal contract because of race or sex discrimination, and no university has lost one.

Indeed, most black leaders feel that affirmative action has only begun to generate significant change. In 1950, 2% of the nation's doctors were black, and this percentage remains unchanged. Similarly, blacks still make up only 3.4% of the nation's lawyers and only 1% of its engineers. And now that most organizations finally accept at least the idea of affirmative action, the limited gains have strengthened demands for outright quotas for the benefit of minorities. That is far more controversial, particularly among Jews, who remember the all too recent days of quotas that excluded them from graduate schools and top jobs.

Bakke is not the only victim to cry halt. A number of others have also gone to court with charges of reverse discrimination. Among them:

P: Brian Weber of Reserve, La., who was passed over for a Kaiser Aluminum & Chemical Corp. training program. Kaiser had signed an agreement with the United Steel Workers specifying that for every white given a craft, job, one black would also be selected. On Weber's motion, a district judge enjoined the agreement.

P: Don Prince, 28, who lost a chance three years ago to become the youngest sergeant in Detroit police history when an affirmative-action plan led to selection of lower-ranking blacks. Prince, along with two other whites, is currently challenging the plan in federal court.

P: James Cramer, 31, who claimed Virginia Commonwealth University refused to consider a white male for a teaching job. A federal judge ruled in his favor.

Most observers believe the Supreme Court's ruling on Bakke, expected next year, will not be broad enough to encompass all reverse-discrimination cases. In last week's oral arguments, at least four Justices indicated that the case could be decided on narrow grounds, i.e., limited to Bakke alone. The case could be sent back to California courts because the record is inadequate (as a much argued over Justice Department brief urged), or the court might rule that a limited state or federal law governed the case. As Justice William Brennan reminded Attorney Colvin, "Ordinarily we don't decide constitutional questions" if another, less sweeping ground is available. Another possible ruling--and one that could result in Allan Bakke's admission, at 38, to the freshman medical class at Davis next fall--would hold that racial quotas are not permissible, but that universities may use race as one factor in future admissions policy. That scenario was suggested from the bench by Justice Powell.

But though the Burger Court is widely regarded as conservative, the general tide of relevant court opinions runs against Bakke. The court has tended to take a flexible view of the equal-protection clause, recognizing that extraordinary steps must occasionally be taken to enforce the basic point of the 14th Amendment: protecting blacks. Even racial quotas have sometimes been authorized to remedy proven discrimination.

On a broader scale, the court has shown increasing reluctance to settle questions better left to "the normal processes of democracy [such as legislatures or regents boards]." It has at times declined, in cases involving schools, to second-guess educational professionals. Cox encouraged that approach, urging the Justices to leave the details of experimentation in race conciliation matters to local experts. The diversity of states and their universities is "one of the greatest sources of creativity in this country," he said.

The Bakke case raises questions that are exquisitely complicated. What is the meaning of equal opportunity? How much help should any person or race receive from the Government to atone for past disadvantage? Can any citizen be held back so that others can catch up? And are the courts best fitted to settle these questions? No matter how the Supreme Court answers, Bakke will leave many problems still to be resolved through the creativity and good will of a society committed to equality for all its citizens. -

* Bakke's lawyer originally told him to wait until the Supreme Court decided the similar case of Marco DeFunis, who had charged that the University of Washington Law School had rejected him because of "reverse discrimination." Since DeFunis was later admitted, the Justices declared the case moot in 1973 and thus left the basic issue unresolved.

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