Regents of the University of California v. Bakke - Oral Argument

Announcement of the Judgment and Opinion in
Regents of the University of California v. Bakke

June 26, 1978

CHIEF JUSTICE WARREN E. BURGER: The judgment and the opinion of the Court in 76-uh-811, Regents of the University of California against Bakke, will be disposed of in this way:

Mr. Justice Powell will announce the judgment of the Court there is no opinion of the Court supported by a majority and accordingly other justices will state their dissenting and concurring opinions in due course following that.

JUSTICE LEWIS F. POWELL: As the Chief Justice has stated,

I am authorized to announce only the Judgment of the Court.

The facts in this case are too well known to be restated this morning.

Perhaps no case in modern memory has received as much media coverage and scholarly commentary.

More than 60 briefs were filed with the Court.

We have also received the advice through the media and the commentaries of countless extra-judicial advocates.

The case was argued some eight months ago.

And as we speak today with a notable lack of unanimity, it may be fair to say that we needed all of this advice.

In any event, it will be evident from the several opinions that the case intrinsically difficult, has received our most thoughtful attention over many months.

So much for an introduction. As there are six separate opinions, I will state first the Court's judgment:

Insofar as the California Supreme Court held that Bakke must be admitted the the Davis Medical School, we affirm.

Insofar as the California court prohibited Davis from considering race as a factor in admissions, we reverse.

I will now try to explain how we divided on these issues.

This may not be self-evident from a hard examination of our various opinions.

The decision of the California court presented us with two central questions.

The first, and the one widely perceived as the only ultimate question, is whether the special admissions program discriminated unlawfully against Bakke.

Either under the Constitution or under Title VI of the Civil Rights Act of 1964.

I will refer to this as the Bakke admissions question.

The second and broader question is whether it is ever permissible to consider race as a factor relevant to the admission of applicants to a state university.

I will refer to this question generally as whether race may be considered.

As will be perceived at this point, if the answer to the second question were negative, that is, that race may never validly be considered this answer disposes of both issues. Bakke would be admitted and the University could not in the future give any consideration to race in its admissions program.

If, however, the second question were answered affirmative, that is, that race may be considered, then it becomes necessary to address the first question separately, that is, whether the special admissions program at Davis is compatible with Title VI and with the Constitution.

I have mentioned both Title VI -- often referred to as the statutory issue -- and the Constitution under which is presented the Equal Protections issue arising under the Fourteenth Amendment.

The case is further complicated because if it were disposed of under Title VI, there would be no occasion to reach the constitutional issues.

I will now state more specifically how the questions are decided.

The Chief Justice and Justices Stewart Rehnquist and Stevens, in an opinion authorized by Mr. Justice Stevens, have concluded that the only question before us is whether Bakke was unlawfully excluded from the medical school because of his race.

In their view, Congress has answered that question in Title VI.

The would affirm the judgment of the California court without addressing the question whether race may ever be considered as a factor in an admissions program.

Justices Brennan, White, Marshall, Blackmun and I have a different view as to Title VI.

We believe, despite its more detailed provisions, that it goes no further in prohibiting the use of race than the Equal Protection Clause.

The five of us therefore reach both of the constitutional questions.

On a constitutional analysis, founded on the Equal Protection Clause, Justices Brennan, White, Marshall and Blackmun -- in their joint opinion -- hold not only race properly may be considered but also that the special admissions program at the Davis Medical School is valid in every respect.

When I have concluded, Mr. Justice Brennan will state his position more fully. Mr. Justice Marshall and Mr. Justice Blackmun also will make statements.

As I agree that Title VI does not dispose of this case, I also address the constitutional question.

On the first of these -- whether the special admissions program is invalid --

I agree with the result reached by Mr. Justice Stevens' opinion but I do so on constitutional grounds rather than on just Title VI.

Thus there are five votes to affirm the judgment, invalidating the special program.

Under this judgment, Bakke will be admitted to the medical school.

As to the second constitutional issue, whether race may be considered as a factor in an admissions program, I agree with the result reached by the joint opinion of Mr. Justice Brennan and my Brothers who have joined him.

Thus, there are five justices who join in a judgment of reversal on this issue.

But the process of constitutional analysis by which I reach this result differs significantly from that of the four justices who have filed a joint opinion.

As my reasoning is set forth fully in my written opinion, as other justices will speak,

I will merely make a brief conclusory summary.

The Davis special admissions program with sixteen of 100 seats reserved exclusively for three categories of minorities, is a classification based on race.

Our cases establish beyond question that a racial classification by a state agency is inherently suspect and must be subjected to the most exacting judicial scrutiny.

Although adopted primarily to protect persons of the Negro race, the guarantee of the Equal Protection Clause by its terms protects all persons.

It provides explicitly that no person shall be denied equal protection of the laws.

Despite this absolute language, our cases have held that some distinctions are justified if necessary to further a compelling state interest.

Davis relies on several interests thought to be compelling.

One is the desire to redress racial imbalance said to result from general societal discrimination against the minority groups selected for preferential treatment.

But there is a complete absence on this record of any findings that this imbalance is traceable to discriminatory practices.

Discrimination by society at large, with no determined effects, is not sufficient to justify petitioner's racial classification.

In my view, the only state interest that fairly may be viewed as compelling on this record in the interest of a university in a diverse student body.

This interest, encompassed within the concept of academic freedom, is a special concern of the First Amendment, but there has been no showing in this case that the Davis special program is necessary to achieve educational diversity.

The Davis program totally excludes all applicants who are not Negro, Asian or Chicano from 16 of the 100 seats in an entering class.

No matter how strong their qualifications -- qualitative and quantitative -- including their own potential for contributing to educational diversity they are not afforded the opportunity to compete with the applicants from the preferred groups for those sixteen seats.

At the same time, the preferred applicants have the opportunity to compete for every seat in the class.

A university's interest in a diverse student body is not limited to ethnic diversity.

Rather its compelling interest in this respect encompasses a far broader array of qualifications and characteristics of which race is only one.

I refer in my opinion to the Harvard admissions program as one example of how race properly in my opinion may be taken into account.

I will quote briefly from the description of the Harvard program, a copy of which is in the Appendix to my opinion.

Here I quote in substance: "The committee -- admissions committee -- has not set target quotas for the number of blacks or musicians, football players, physicists or Californians to be admitted in a given year.

Awareness of the for diversity means only that in choosing among thousands of academcially qualified applicants the Committee with a number of criteria in mind pay some attention to the distribution that should be made among many types and categories of students."

Thus race is considered in a flexible program designed to achieve diversity but it is only one factor weighed competitively against a number of other factors deemed relevant.

Under such a system, each applicant is treated as an individual regardless of race and is considered in competition for each seat in the class.

As the briefs in this case and in the literature in this area abundantly illustrate many of our finest universities and colleges pursue the flexible competitive admissions program in which race may be considered as a relevant factor.

This experience demonstrates that the Davis-type program -- one that arbitrarily forecloses all competition solely on the basis of race or ethnic origin -- is not necessary to obtain reasonable educational diversity.

In my view, it therefore violates the Equal Protection Clause in the most fundamental sense.

Yet, the way is open to Davis to adopt the type of admissions program that proved to be successful in so many of the universities and colleges of our country.

JUSTICE JOHN PAUL STEVENS: The University of California, through its special admissions policies, excluded Alan Bakke from participation in its program of medical education because of his race.

The Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist and I are of the opinion that that action violated Title 6 of the Civil Rights Act of 1964.

Section 601 of that Act prohibits the exclusion of any person on the ground of race from any program receiving federal financial assistance.

The Davis Medical School is such a program.

The language of the statute is exceptionally plain.

It provides "No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance."

The legislative history of the statute makes it clear that Congress meant exactly what it said.

During the lengthy debates, opponents of the legislation expressed the concern that the Act would be read as mandating racial quotas in racially balanced colleges and universities.

In response, those supporting the legislation gave repeated assurances that the Act would be color-blind in its application.

One supporter of the Act expressed this position in these words: "The basic fairness of Title 6 is so clear that I find it difficult to understand why it should create any opposition.

"Private prejudice, to be sure, cannot be eliminated overnight. However, there is one area where no room at all exists for private prejudices. That is the area of governmental conduct.

"As the first Mr. Justice Harlan said in his prophetic dissenting opinion in Plessy against Ferguson, 'Our Constitution is color-blind.'

"So, I say to Senators, must be our government. Title 6 closes the gap between our purposes as a democracy and our prejudices as individuals.

"The cuts of prejudice need healing. The costs of prejudice need understanding.

"We cannot have hostility between two great parts of our people without tragic loss in our human values."

In words that would be paraphrased and repeated throughout the Congressional debates, Senator Pastore -- the floor manager of the bill -- clearly stated the intent of Congress.

Title 6 will guarantee that the money collected by color-blind tax collectors will be distributed by federal and state administrators who are equally color-blind.

We cannot ignore the plain language in the legislative history and in the statute itself.

The simple rule set forth in the statute is not qualified by any words that say in substance that the prohibition against racial discrimination shall apply only if the racial discrimination is also unconstitutional.

In order to interpret this unusually clear color-blind statute there is no need to decide whether the Constitution is also color-blind.

In construing other provisions of the Civil Rights Act of 1964, the Court has held that the statute has a meaning of its own that is not necessarily congruent with any constitutional standard.

Thus, for example, in Washington v. Davis, an employment discrimination case arising under Title 7, the Court stated, "We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standards applicable under Title 7 and we decline to do so today."

And in other Title 7 cases, the Court has also squarely held that the statute prohibits racial discrimination against white petitioners upon the same standard as would be applicable were the Negroes.

Quoting from our earlier decision in Graves v. Duke Power, the Court reaffirmed the principles that the statute prohibited discriminatory preference for any racial group minority or majority.

But the university argues that regardless of the principle of non-discrimination established by Title 6, an individual who is injured by a violation of Title 6 has no standing to litigate his claim in court.

This contention was not raised until oral argument before us and has repeatedly and consistently rejected in cases both in this Court and others where individuals have raised claims similar to Bakke's.

In the context of this case, we find no merit in the argument that Bakke has no standing to assert his statutory claims.

Two questions remain.

First, even though the statutory ground for decision in this case is dispositive, is it appropriate to discuss any constitutional issues presented by the case?

The Court has repeatedly given the same answer to this question.

To quote only one such answer in Spector Motor v. McLaughlin:

"If there one doctrine more deeply rooted than any other in the process of constitutional adjudication it is that we ought not to pass on questions of constitutionality unless such adjudication is unavoidable."

The more important -- that's the end of the quotation -- the more important the issue, the more force there is to this doctrine.

In our view, we have a clear duty to avoid unnecessary discussion of constitutional questions.

Finally, should the Court volunteer its views about university admissions programs other than the one which resulted in the rejection of Bakke's application, again the answer is plain. It is well settled that this Court reviews judgments, not statements and opinions.

This lawsuit is between two specific litigants: Alan Bakke and the Regents of the University of California.

The judgment now before us, as we explain in our opinion, declares that the university's special admissions program was unlawful and orders that Bakke be admitted to the medical school.

The specific holding of the California Supreme Court that is under review in this case is limited to the conclusion that the special admissions program employed by that university was unlawful.

No other issue remains in the case.

Just as we have a duty to decide that issue, so too we have a duty, equally strong and equally ingrained in the constitutional structure of our government, to discussion of important issues not presented by the controversy before us.

Seventy-five years ago, in one of his classic dissenting opinions, Mr. Justice Holmes observed that in great cases the interests at stake generate a kind of hydraulic pressure which makes what previously was clear seem doubtful and before which, even well-settled principles of law will bend.

Notwithstanding the pressures that tempt us to speak about other issues, well-settled principles dictate a course of judicial restraint.

For these reasons, the Chief Justice, Mr. Justice Stewart, Mr. Justice Rehnquist and I have concluded that the Court should simply affirm the judgment of the California Supreme Court.

To the extent that the Court today purports to do anything else, we believe it exceeds its proper judicial role.

JUSTICE WILLIAM J. BRENNAN, JR.: As my Brother Powell has already said, Mr. Justice White, Mr. Justice Marshall, Mr. Justice Blackmun and I have filed a jointly signed opinion supporting our view that the judgment of the California Supreme Court should be reversed in all respects.

Not only insofar as it prohibits the university from establishing race-conscious programs in the future, but also insofar as the judgment orders that respondent Bakke be admitted to the Davis Medical School.

As is apparent from the statements of both my Brother Powell and my Brother Stevens, all nine members of the Court addressed the threshold question of statutory construction.

And a majority consistenting of Mr. Justice Powell and the four of us construe the statute as going no further in prohibiting the use of race than the Equal Protection Clause itself. Now that then is the law of statutory construction for the purposes of this case.

Although it may strike some as unusual that the dissenters from that construction rest their affirmance on the California Supreme Court on their construction of Title 6 that is not the law, having been rejected by a majority of the Court.

The dissenters have chosen not to address the constitutional question required by the majority's controlling construction, namely whether the Davis program violate the Equal Protection Clause.

And our Brother Powell, as he has said, also affirms the California Supreme Court insofar as it directed Bakke's admission, but on the ground -- even though I know I'm repeating, I think it's important that it be emphasized -- leasing the Constitution, Davis's special admissions program is unnecessary, in his view, to the achievement of the compelling goal of achieving a diverse student body.

So in consequence, only five members of the Court address the constitutional question of uniquely paramount importance that this case presents.

What race-conscious programs are permissible under the Equal Protection Clause?

Although it is no secret that the Court took this case as a vehicle for confronting that issue after avoiding it on mootness grounds in the DeFunis case.

But the fact that only five of us address the constitutional question must not obscure the signal importance of today's decision on the consitutional question.

Five of us -- a Court majority -- reverse the judgment of the California Supreme Court insofar as it prohibits Davis from establishing race-conscious admissions programs in the future.

Thus, the central meaning of today's opinion is this:

Government may take race into account when it acts not to demean or insult any racial group but to remedy disadvantages cast on minorities by past racial prejudice at least when appropriate findings have been made by judicial, legislative or administrative bodies with competence to act in this area.

Now the opinion of the four of us is some fifty-five printed pages and of course I shall only briefly touch upon its highlights.

The first half addresses the threshold question of the construction of Title 6. Although the dissenters have the view that there is a private right of action under Title 6, three of the four of us agree with our Brother Powell that this case doesn't require us to decide that question.

Our Brother White, however, believes we should address it and accordingly he has filed a separate opinion stating his view that there is no private right of action under Title 6.

The rest of our statutory construction discussion canvasses in great detail the legislative history that contrary to the view just expressed by my Brother Stevens, in our view establishes without question that Title 6 was not intended to bar state affirmative action programs not barred by the Equal Protection Clause itself.

In other words, the legislative history, contrary to the dissenters' reading, provides no support for the proposition that Congress intended to impose statutory limitations upon constitutionally permissible racial preferences designed to extend the benefits of Federally-financed programs to racial minorities that historically have been excluded from the full benefits of American life as a result of racial discrimination.

In sum, in our Brother Powell's words in his opinion -- and I quote them -- "In view of the clear legislative intent, Title 6 must be held to proscribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment."

Our discussion of the constitutional question takes up the second half of our opinion.

It opens with a history of our national betrayal of our founding principle "that all men are created equal."

For candor requires acknowledgment that the Framers of our Constitution, who forged the thirteen colonies into one nation, openly compromised this principle of equality with its antithesis, slavery.

The consequences of this compromise are well-known.

They have been aptly called 'our American dilemma.'

Thus we think it well to recount how brief the time has been -- if it has yet come -- when the promise of our principles has flowered and that the actuality of equal opportunity for all regardless of race or color.

The Fourteenth Amendment -- the embodiment in the Constitution of our abiding belief in human equality -- has been the law of our land for only slightly more than half of our two hundred years as a nation.

And for half of that half, the Equal Protection Clause in the Amendment was largely moribund.

Worse, the clause was early turned against those whom it was intended to set free, condemning them to a separate but equal status before the law, a status always separate but seldom equal.

Not until 1954 -- 24 years ago -- was this odious doctrine interred by our decision in Brown v. Board of Education.

Brown I and its progeny was proclaimed that separate schools and public facilities of all sorts were inherently unequal and forbidden under our Constitution.

Even then, inequality was not eliminated with all deliberate speed.

In 1968 and again in 1971, we were forced to remind school boards of their obligation to eliminate racial discrimination root and branch.

And a glance at our docket and those of lower courts even today will show that officially sanctioned discrimination is not a thing of the past.

Against this background, claims that laws must be color-blind or that the datum of race is no longer relevant to public policy must be seen as aspirations rather than as descriptive of reality.

This is not to denigrate aspirations.

But reality rebukes us that race has so often been used those who would stigmatize and oppress minorities.

Yet we cannot -- and as our opinion attempts to demonstrate, need not -- under our Constitution let color-blindness become myopia which masks the reality that many created equal have been treated within our lifetimes as inferior both by the law and by their fellow citizens.

The assertion of human equality is closely associated with a proposition that differences in color or creed, birth or status are neither significant nor relevant to the way in which persons should be treated.

Nonetheless, the position that such factors must be constitutionally an irrelevant -- summed up by the short-hand phrase 'our Constitution is color-blind' -- has never been adopted by this Court as the proper meaning of the Equal Protection Clause.

Our opinion cites numerous decisions of this Court:

School desegregation cases, gender discrimination cases, decisions sustaining affirmative action programs of the Congress and federal agencies supporting the conclusion that nothing whatever in the history of the Fourteenth Amendment or the Civil Rights Act either remotely suggests that the states were foreclosed from furthering the fundamental purpose of equal opportunity to which the amendment and these acts are addressed.

Our opinion next turns to the problem of what the judicial role should be in reviewing state action that expressly classifies by race for remedial purposes, as does the Davis program.

Respondent Bakke argues that racial classifications are always suspect and consequently, that this Court should weigh the importance of the objectives served by Davis's affirmative admission program to see if they are compelling.

In addition, he asserts that this Court must inquire whether in its judgment there are alternatives other than racial classifications which would suit Davis's purposes.

The university, on the other hand, states that our proper role is simply to accept its determination that the racial classifications used by its program are reasonably related to what it tells us are its benign purposes.

Our opinion adopts a standard somewhere in between.

Because of the significant risk that racial classifications established for obstensibly benign purposes can be misused, causing effects not unlike those created by invidious classifications, it is inappropriate to inquire only whether there is any conceivable basis that might sustain such a classification.

Rather, to justify such a classification, an important and articulated purpose for its use must be shown.

In addition, any statute must be stricken that stigmatizes any group or that singles out those least represented in the political process to bear the brunt of a benign program.

Thus, our review under the Fourteenth Amendment should be strict, not strict in theory and fatal in fact because it is stigma that causes fatality, but strict and searching nonetheless.

The opinion next analyzes the Davis program by that standard and concludes that it passes constitutional muster as a permissible program to remove the disparate racial impact its admissions program might otherwise have and was adopted on the basis of the reasonable belief that the disparate impact is itself the product of past discrimination whether the university's or the society's at large.

It is not even claimed that the Davis program operates to stigmatize or single out any discrete or insular or even any identifiable non-minority group.

Bakke was not in any sense stamped as inferior by the Medical School's rejection of him.

Indeed, it is conceded by all that he satisfied those criteria regarded by the school as generally relevant to academic performance better than most of the minority members who were admitted.

In addition, there is simply no evidence that the Davis program discriminates intentionally or unintentionally against any minority group which it purports to benefit.

The program does not establish a quota in the invidious sense of a ceiling on the number minority applicants to be admitted.

Nor can the program reasonably be regarded as stigmatizing the program's beneficiaries or their race as inferior.

It's uncontested that Davis admits only those minority applicants in its special programs who are fully qualified to study medicine.

Once admitted, these students must satisfy the same degree requirements as regularly admitted students.

They're taught by the same faculty in the same classes and their performance is evaluated by the same standards by which regularly admitted students are judged.

Under these circumstances, their performance and degrees must be regarded equally with the regularly admitted students with whom they compete for standing.

Our opinion finally comes to our reasons for disagreeing that the set-aside of sixteen places under the Davis program requires the conclusion that Bakke was unconstitutionally denied admission.

Davis's special admissions program cannot in our view be said to violate the Constitution simply because it has set aside a predetermined number of places for qualified minority applicants rather than, as does the Harvard program approved by our Brother Powell, using race as a positive factor to be considered in evaluating the applications of disadvantaged minority applicants.

We think, that for purposes of constitutional adjudication, there is simply no difference between the two approaches.

It's inescapable that in any admissions program which extends a preference to disadvantaged racial minorities, a decision must be made as to how much of a preference is to be given and any given preference that results in the exclusion of a white candidate is no more or less constitutionally acceptable than a program such as that at Davis.

Furthermore, the extent of the preference inevitably depends on how many minority applicants a particular school is seeking to admit in any particular year.

There is no sensible, and certainly no constitutional distinction as we see it, between for example adding a set number of points to the admissions rating of disadvantaged minority applicants as an expression of the preference with the expectation that this result -- will result in an approximately determined number of qualified minority applicants and setting a fixed number of places for such qualified applicants as was done here.

The Harvard program, as those employing it readily concede, openly and successfully employs a racial criterion for the purpose of insuring that some of the scarce places in institutions of higher education are allocated to disadvantaged minority students.

That the Harvard approach does not also make public the extent of the preference and the precise workings of the system while the Davis program employs a specific openly stated number does not in our view condemn the latter plan for the purposes of the Fourteenth Amendment.

It may be that the Harvard plan is more acceptable to the public generally than is the Davis program.

If it is, any state -- including California -- is free to adopt it in preference to a less acceptable alternative just as it is generally free as far as the Constitution is concerned to abjure granting any racial preferences in its admissions programs.

But there's no basis for preferring a particular preference program simply because in achieving the same goals as the Davis Medical School is pursuing it proceeds in a manner that is not immediately apparent to the public.

JUSTICE HARRY A. BLACKMUN: Mr. Justice Powell has stated that this case is intrinsically difficult.

Perhaps so, perhaps not.

I suspect that for those four members of the Court who find the Title 6 issue controlling in the case really is not very difficult.

But for the five of us who feel that Title 6 does not provide the answer, the case has much deeper and more profound ramifications.

This case -- like the death penalty issues that have been before the Court in years last past, like the abortion cases, like the school desegregation cases -- has caught the popular interest and the people's deep concern.

Like each of those, it finds the people as well as justices divided in their innate reactions.

Strands of heritage and strands of emotion and strands of presumption all are plucked.

For me, this case is distinctly a constitutional, not a statutory, case.

And because it is, I have joined my Brothers Brennan and White and Marshall in the opinion Justice Brennan has just described.

What I have written separately I believe and I hope is complementary in what is said in the opinion for the four of us.

I emphasize, however, a number of very general factors.

First. Until just a few years ago, in the early 1970s, a very small number -- less than two percent of all the physicians and all the attorneys and all the students in medical and law schools in this country were members of what we refer to as minority groups.

And, in addition to this factor, almost three-quarters of our Negro physicians were trained at only two medical schools: Howard here in Washington and Maharrey in Nashville, Tennessee.

If ways are not found to remedy that kind of situation, the country will never achieve its professed goal of a society that is not race-conscious.

Second. I am optimistic that that remedy will be forthcoming and I am optimistic that we will see a time when race-conciousness is a far less significant factor in our national life than it is today. When that time will come I do not know.

But when it comes, affirmative action so-called or reverse discrimination will be a thing of the past.

Third. In this case, we are considering not a demarcation between the qualified on the one hand and the unqualified on the other.

But we are considering a process of selection among those who are qualified to go to medical school.

It follows, when all those qualified cannot be admitted as is sadly the case today, that there is a denial to the deserving.

This inescapable fact is brought into sharp focus here because Alan Bakke is not himself charged with discriminaton and yet he is one who is disadvantaged and because the medical school at Davis itself was not charged historically with discrimination.

Next. For me there is no particular or very real significance to the 84-16 division at Davis.

The same legal and constitutional considerations necessarily apply if the Davis special administration program had focused on any lesser number, that is, on twelve or eight or four or indeed on only one place.

It is somewhat ironic to have us so deeply disturbed by this case which concerns the program where race is an element of consciousness.

And yet for all of us to be aware of the fact and to know that our institutions of higher learning long have given and still do give conceded preference up to a point to accomplished or promising athletes, to children of alumni, to the affluent and to those who have connections with celebrities and the famous and the powerful.

Next. It seems to me that programs of admission are basically a responsibility for the academicians.

The judiciary is ill-equipped and poorly trained for this task.

Management of a university or of a professional school is within the special competence of educators.

Interference by the judiciary, therefore, must be the rare exception and not the rule.

Next. I agree with Mr. Justice Powell that today's philosophical conception of the Fourteenth Amendment as he as set forth in his opinion embraces a so-called broader principle than the Amendment did when it was adopted 1868, one hundred and ten years ago.

But for me that enlargement does not mean that the Fourteenth Amendment has broken away from its moorings and from its original intended purpose.

Those original aims still persist. And that, in a distinct sense, is what affirmative action is all about.

If this conflicts with idealistic equality or with pure equal protection any such tension of that kind is original Fourteenth Amendment tension and it is constitutionally conceived and constitutionally proposed.

I am not convinced as Mr. Justice Powell is that the difference between the Davis program and those employeed by the amici here --

Harvard and Stanford and Pennsylvania and Columbia -- is constitutionally significant.

Certainly the line between the two is a thin one and I say this because in each program subjective application is at work.

I do agree that the Harvard-type program where race or ethnic background is only one of many factors is a program probably better formulated than the two-track system at Davis.

And yet the cynical may say that under the Harvard program one may accomplish covertly what Davis says it does openly.

I think it is worth noting that governmental preference is not a stranger to our legal life.

We certainly see it in veterans' preference legislation.

We see it in the aid to the handicapped programs. We see it in the progressive income tax.

We see it in the Indian programs. We accept some of these on the ground that they have special constitutional protection or as with Indians that they are wards of the government.

Nevertheless, the preferences exist and we have accepted them.

I suspect it would be impossible to arrange an affirmative action program in a racially neutral way and to have it successful.

That almost demands the impossible. In order to get beyond racism we must first take account of race.

And in order to treat some persons equally we must treat them differently.

We cannot -- and I think we dare not -- let the Equal Protection Clause of all the provisions in the Constitution perpetuate racial supremacy.

And so for me the the ultimate question -- as it was at the very beginning -- is this:

Among the qualified, how does one choose?

In putting that in the framework of constitutional consideration and requirements, it seems that we get back to basics.

And at the risk of being repetitious I think it brings back what a very great chief justice -- known as the Great Chief Justice -- said a long time ago, for he pointed the way.

"In considering this question, then, we must never forget that it is a constitution we are expounding."

And later in McCulloch against Maryland, he went on in words that I think are particularly appropriate for this case:

"Let the end be legitimate, let it be within the scope of the Constitution, and all means -- all means -- which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and the spirit of the Constitution, are constitutional."

More recently, one destined to be a justice of this Court said this: "The great generalities of the Constitution have a content and a significance that vary from age to age."

Well those are precepts of breadth and flexibility and ever-present modernity so far as our Constitution is concerned, they are precepts that are basic to our constitutional law.

And today again for the four of us anyway -- five of us, I think -- we expound a constitution and the same principles that governed McCulloch's case in 1819 govern Bakke's case in 1977 and 1978.

For me there can be no other answer and there is no alternative.

JUSTICE THURGOOD MARSHALL: Some of what I have to say will be repetitious but I feel obliged to say it.

I agree with the judgment of the Court, with this Court, only insofar as it permits a university to consider the race of an applicant in making admissions decisions.

I do not agree that petitioner's admissions program violates the Constitution, for it must be remembered that during most of the past 200 years, the Constitution, as interpreted by this Court, did not prohibit the most ingenious and pervasive forms of discrimination against the Negro.

Now, when a state acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier.

Three hundred and fifty years ago, the Negro was dragged to this country in chains to be sold into slavery; and, the system of slavery brutalized and dehumanized both master and slave.

An implicit protection of slavery was embodied in the Declaration of Independence and was made explicit in the Constitution.

The individual states likewise established the machinery to protect the system of slavery through the promulgation of the slave codes, which were designed primarily to defend the property interests of the owner in his slaves.

The position of the Negro slave as mere property was then confirmed by this Court in Dred Scott against Sandford.

The status of the Negro as property was officially erased by his emancipation at the end of the Civil War.

But the long-awaited emancipation, while freeing the Negro from slavery, did not bring him citizenship or equality in any meaningful way.

Despite the passage of the Thirteen, Fourteenth and Fifteenth Amendments, the Negro was systematically denied the rights that those Amendments were supposed to secure.

The combined actions and inactions of the state and federal governments maintained negroes in a position of legal inferiority for another century after the Civil War.

The southern states took the first steps [the] immediately following the end of the Civil War many of the provisional legislatures passed Black codes similar to the slave codes which, among other things, limited the right of the Negro to own or rent property and permitted imprisonment for breach of employment contracts.

Congress responded to these legal disabilities by enacting the Reconstruction Acts and the Civil Rights Act.

Thus, for a time back there, it seemed as if the Negro might be protected from the continued denial of his civil rights and might be relieved of the disabilities that prevented him from taking his rightful place as a free and equal citizen.

That time, however, was short-lived. Reconstruction came to a close.

And, with the assistance of this Court, the Negro was rapidly stripped of his new civil rights.

The Court began by interpreting the Civil War amendments in a manner that sharply curtailed their substantive protections.

Then, in the notorious Civil Rights Cases, the Court strangled Congress's efforts to use its power to promote racial equality.

The Court's ultimate blow to the Civil War Amendments and to the equality of Negroes was, of course,Plessy against Ferguson.

In upholding that Louisiana law, they said that "equal but separate" accommodations for whites and Negroes.

The Court held that the Fourteenth Amendment was not "intended to abolish distinctions based upon color, or to enforce social, as distinguished from political, equality, or a commingling of the two races upon terms unsatisfactory to either," ignoring totally the realities of the positions of the two races.

Mr. Justice Harlan's dissenting opinion recognized the bankruptcy of the Court's reasoning. He expressed his fear that if like laws were enacted in other states "the effect would be in the highest degree mischievous."

The fears of Mr. Justice Harlan were soon to be realized.

In the wake of Plessy, many states began to expand their Jim Crow laws, which up until that time had been limited primarily to passengers, trains, and schools.

The segregation of the races was extended to residential areas, parks, hospitals, theaters, waiting rooms and bathrooms, you name it.

The enforced segregation of the races continued into the middle of the twentieth century.

Both world wars, negroes were for the most part confined to separate military units.

It was not until 1948 that an end to segregation in the military was ordered by President Truman.

And the history of the exclusion of negro children from white public schools is too well known and recent to require repeating here.

That Negroes were deliberately excluded from public graduate and professional schools and thereby denied the opportunity to become doctors, lawyers, engineers and the like, is too well established.

The position of the Negro today in America is a tragic but inevitable consequence of centuries of unequal treatment.

Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro.

The Negro child today has a life expectancy which is shorter by more than five years than that of the white child. That's today.

The median income of the Negro family is only [one] sixty percent of the median income of a white family.

And the percentage of Negroes who live in families with incomes below the poverty line is nearly four times greater than that of whites.

Today, when the Negro child reaches working age, he finds an America that offers him considerably than it offers his white counterpart.

For Negro adults, the unemployment rate is twice that of whites, at least twice.

And the unemployment rate for Negro teenagers is three to four times that of white teenagers. I'm talking about today.

The relationship between these figures and the history of unequal treatment offered to the Negro cannot be denied. And I haven't heard it denied.

At every point, from birth to death, the impact of the past is related to the still-disfavored position of the Negro.

In light of this sorry history of discrimination and the devastating impact on the lives of our Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order.

To fail to do so is to insure that America will remain a divided society.

I do not believe that the Fourteenth Amendment requires us to accept that fate.

Neither history nor our past cases lend support to the conclusion that a university may not remedy the cumulative effects of society's discrimination by giving consideration to race in an effort in increase the number and percentage of Negro doctors in this country.

The experience of Negroes in America has been different in kind, not just in degree, from any of the other ethnic groups.

It is not merely the history of slavery alone, but also that a whole people were marked as inferior by the law and that that mark has endured.

The dream of America as a great melting-pot has not been realized for the Negro because of his skin color never even made it into the pot.

These differences in the experience of the Negro make it difficult for me to accept that Negroes cannot be afforded greater protection under the Fourteenth Amendment where it is necessary to remedy the effects of past discrimination.

In the Civil Rights Cases, this Court wrote that the Negro emerging from slavery must cease "to be the special favorite of the laws."

We cannot, in light of the history of the last century, yield to that view.

Had this Court been willing in 1896 in Plessy and Ferguson to hold that the Equal Protection Clause forbids difference in treatment based on race, we would not be faced with this dilemma in 1978.

We must remember, however, that the principle that the Constitution is color-blind appeared only in the dissenting opinion.

The majority of the Court rejected the principle of color-blindness and for the next sixty years, from Plessy to the Board of Education, ours was a nation whereby law, an individual could be given special treatment based on the color of his skin.

It is because of a legacy of unequal treatment that we now must remit the institution of the society to give consideration of race to making decisions about who will hold the positions of influence -- prestige and influence in America. Far too long, the doors of open position have been shut to negroes.

If we are ever to become a fully integrated society, one in which the color of a person's skin will not determine the opportunities available to him, we must be willing to take steps to open those doors.

I do not believe that anyone can look into America's past and still find that a remedy for the effects of that past is impermissible.

It has been said that this case involves the individual, Bakke, and nobody else.

And on the other had it says it only involves Davis University.

I doubt, however, that there is a computer capable of determining the number of persons and institutions that may be affected by the decision in this case today.

For example, we are told by the Attorney General of the United States that at least twenty-seven federal agencies that adopted regulations requiring all recipients of federal funds to take "affirmative action to overcome the effects of conditions which resulted in limited participation by persons of a particular race, color or national origin."

I cannot even guess the number of state and local governments that have set up similar affirmative action programs, which may be affected by today's decision.

I, for one, fear that we have come full circle.

After the Civil War, our government started several affirmative action programs.

This Court, in the Civil Rights Cases and Plessy against Ferguson, destroyed that movement toward complete equality to affirmative actions.

And then, for almost a century, no action was taken and this non-action was twith the tacit approval of the courts.

Then we had Brown versus Education and the congressional civil rights act followed by numerous affirmative action programs.

But now, today, we this Court again stepping in, this time to stop affirmative action programs of the type used by the University of California. In doing so, I cannot go along.

CHIEF JUSTICE WARREN E. BURGER: Thank you, gentlemen.