Bakke Wins, Quotas Lose

But the divided Supreme Court endorses affirmative action based on race

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Powell rejected the regents' view that a quota is acceptable if it is "benign." He rejected the notion that the white majority has a right to discriminate against its own members. Strictly speaking, there is no such majority, he wrote, for the U.S. contains all kinds of ethnic groups that can claim varying degrees of past discrimination. If they were all assured a minimum number of places, the only "majority" left would be a "new minority of white Anglo-Saxon Protestants." There is no way for a court to decide which of these groups merit "heightened judicial solicitude." Powell noted that Davis was unable to explain why it had singled out certain groups for special favor:

Negroes, Mexican Americans and Asians.

Special programs, Powell continued, may only "reinforce common stereotypes," since they imply that certain groups need extra help to succeed in life. These efforts can also heighten racial tensions, because groups left out may become resentful. They will probably take little comfort in the fact that they are being deprived only because they are in the white majority. "One should not lightly dismiss the inherent unfairness of a system of allocating benefits and privileges on the basis of skin color and ethnic origin."

Racial preference had been upheld by the court in previous cases involving school desegregation and discrimination in employment, Powell acknowledged. But in these cases, the court had acted in response to past discrimination, which was not the case at the newly founded Davis school.

Powell concluded his opinion by suggesting a way for Davis to correct its unconstitutional program.

It should follow the admissions policies established in the 1960s at Harvard, which attempts to recruit a diverse student body without setting racial quotas (most U.S. colleges have similar programs). Race is a factor that is considered along with geographical location or athletic or artistic ability. Powell listed some other qualities that might be considered: unique work or service experience, leadership potential, maturity, demonstrated compassion, a history of overcoming disadvantage. Race can help a student get into Harvard, he wrote, but by no means assures admission. The number of minority students varies from year to year (8.1% of the undergraduates admitted for the fall semester are black, 5.7% Asians, 4.6% Hispanic and .4% American Indians). Powell conceded that such a flexible program may be a subtle and sophisticated way of disguising a racial quota. But he presumed that a university would operate it on good faith. The "fatal flaw" in the Davis program, he wrote, was its "disregard of individual rights as guaranteed by the 14th Amendment."

In an opinion as long as Powell's, Brennan took a more sweeping view of past discrimination and of the measures needed to correct it. Citing the founding fathers' acceptance of slavery, he sketched a brief history of discrimination and concluded that racism has been too pervasive for Americans to try to disregard race today. "Against this background, claims that law must be color blind or that race is no longer relevant to public policy must be seen as aspiration rather than as description of reality. We cannot ... let color blindness become myopia."

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