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At one point during deliberations the Justices considered holding the case over until the next term, which begins in October. Some of them were dissatisfied with the records from the lower court. Key questions, they felt, had not been answered because they had not been asked. But on considering the matter, the Justices thought they might look foolish if they postponed their decision in a case of such urgency. Said an observer: "They were worried about the public perception of the court if it failed to deal with Bakke now."
They had another reason not to delay: they had already done so once before. TIME has learned that the court had a majority ruling in favor of Marco DeFunis, the white applicant who claimed that he was refused admission to the University of Washington law school on grounds of race. Since he was subsequently admitted to the school, the Justices decided to avoid the issue by declaring the case moot. But to duck the issue again would leave the court open to charges of shirking its responsibility.
In a public display of their tortuous deliberations, an unusually large number of Justices decided to explain their positions in court. Only three—Burger, Rehnquist and White—did not speak. Stevens, the court's newest member, crisply stated why Bakke had won. The court did not decide on constitutional ground, Stevens emphasized. The decision had been based on Title VI of the 1964 Civil Rights Act, which prohibits racial discrimination in any program receiving federal funds. Said Stevens: "It is an unusually clear, color-blind statute."
The court's only black Justice, Marshall, was the last to speak. Though he normally comments in subdued tones from the bench, the longtime civil rights fighter leaned toward the microphone and boomed out his thoughts. "The position of the Negro today in America is tragic," he said gravely. "I'm talking about today." Marshall argued that the Bakke decision would perpetuate second-class citizenship for the Negro, consigning him to a shorter life, more poverty, less education, more unemployment than the white majority.
In his decisive opinion, Powell declared that the language against discrimination in Title VI is "majestic in its sweep," like that of the 14th Amendment.
"No person in the United States," says Title VI, "shall, on the ground of race, color, or national origin, be excluded from participation in any program or activity receiving federal financial assistance."
Davis' special admissions program reserved 16 out of 100 places for disadvantaged minority students. In an attempt to demonstrate that this was not an unlawfully discriminatory act, as Bakke had charged, the California regents argued that Davis was only pursuing a "goal" of greater minority representation. But this was a semantic distinction, said Powell, and beside the point. The program was "undeniably a classification based on race and ethnic background," and thus violated both Title VI and the equal-protection clause of the 14th Amendment.