Bakke Wins, Quotas Lose

But the divided Supreme Court endorses affirmative action based on race

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He thereupon declared that the court had ruled in favor of Allan Bakke, 38, the California engineer who so desperately wanted to be a doctor and would now finally have his opportunity. In a 5-to-4 decision, the court affirmed the lower-court order admitting him to medical school at the University of California at Davis, because its special admissions program for minorities had violated Title VI of the Civil Rights Act of 1964. Powell said that quotas based entirely on race, in situations where no previous discrimination had been found, were illegal. But a majority of the court also declared, 5 to 4, that a university could continue to take race into consideration in admissions.

Bakke was not a sweeping decision resounding with memorable phrases. But by ruling narrowly and indeed delicately, the court had apparently succeeded in finding a middle ground between stridently opposed forces on the deeply emotional issue of "reverse discrimination." If no hosannas were being sung in the streets, there were widespread sighs of relief. The court had accomplished the near impossible: it had handed down a decision that would partly satisfy most people and strongly dissatisfy only a few. It was an exercise in judicial pragmatism in the tradition of a politically aware, not overly ideological court. The decision is an "act of judicial statesmanship," said Harvard Law Professor Alan Dershowitz. "The decision will go down in history not for what it did but for what it didn't do." Added his colleague Paul Freund: "The very fact that it is somewhat fuzzy leaves room for development, and on the whole that's a good thing."

The key swing vote in the decision, the man squarely in the middle, was Powell, who was never that sure he wanted to be a judge in the first place. Quiet, scholarly, wistful and widely respected for his legal acumen, he agreed in part with two different groups within the court. He accepted a portion of the opinion of the four Justices who upheld the California Supreme Court decision in favor of Bakke: Burger, William Rehnquist, John Paul Stevens and Potter Stewart. He also sided in part with the four Justices who decided against Bakke: William Brennan, Harry Blackmun, Thurgood Marshall and Byron White. He thus ended by writing the critical opinion for a sharply divided court.

Writing six different opinions totaling 154 pages, the Justices were as torn by the issue as was the rest of the nation. The case had attracted 61 amicus curiae briefs, the most that had ever been submitted in the history of the court. "The Justices really agonized," said an inside observer. Three times the opinions were sent to the printer only to be pulled back for additions, deletions and revisions. The version finally made public was the fourth. Blackmun, in particular, had trouble making up his mind. Though he and Burger have often been paired as the Nixon-appointed and conservatively inclined "Minnesota twins," he decisively parted with his colleague on this issue.

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