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In none of its cases, said Brennan, had the Supreme Court ever ruled that the Constitution is color blind. It does not make sense, he declared, to try to eliminate the evil of racial discrimination and then forbid the remedies that are required to accomplish this. Congress avoided any "static definition of discrimination in favor of broad language that could be shaped by experience, administrative necessity and evolving judicial doctrine."
Brennan agreed that racial preference could not be condoned simply on the grounds that it was being undertaken for benign purposes. But he thought the Davis program for minority applicants was justified. It aimed to remedy "substantial and chronic underrepresentation" of minorities in the field of medicine. No proof is needed, said the Justice, to show that those who benefit from the program have been victims of discrimination. They fall within a "general class" of people who have suffered discrimination. Whites, it is true, are excluded from the program, but they are not stigmatized.
Brennan concluded that there was no practical alternative to the Davis program. Setting aside places for disadvantaged students without regard for race would not work. Whites would still outnumber blacks. Brennan could see no constitutional distinction between the Davis and Harvard programs.
Putting it rather wryly, he said the only difference was that Davis was open about its racial-quota system, while Harvard more prudently achieved its racial balance in private. But there is no reason to prefer the Harvard program just because it "proceeds in a manner that is not immediately apparent to the public."
If it took Blackmun longer than the other Justices to reach a decision in the case, he expressed it all the more passionately in his separate opinion. He wrote that he would "yield to no one in my earnest hope that the time will come when an affirmative-action program is unnecessary and is only a relic of the past." But the slow pace of desegregation after Brown vs. Board of Education had convinced him that his hope is a "slim" one. He thought it was ironic that the injection of race into university admissions could cause such a disturbance, when preferences have always been given to "those possessed of athletic skills, to the affluent who may bestow their largesse on the institutions, and to those having connections with celebrities, the famous and the powerful." He concluded: "In order to get beyond racism, we must first take account of race."
What will be the impact of this painstakingly assembled Supreme Court decision? The only undeniable winner is Allan Bakke, who can enroll at Davis medical school this fall after his five-year battle.
There is some speculation that he may give up this opportunity and remain an engineer at the Ames Research Center, a NASA laboratory where he has worked since 1967. But he insists that he plans to study medicine, and his attorney, Reynold Colvin, says his client is no social crusader. "He's a private man who felt that he'd been dealt with unfairly," says Colvin, who has advanced his client much of the cost of the long campaign. "He has stuck with it because it's his dream to become a doctor. He's a determined gentleman."