Regents of the University of California v. Bakke - Opinion Announcement

Argument of Chief Justice

Mr. Justice: The judgment and opinion of the court in 76-811, Regents of the University of California against Bakke will be disposed 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 them.

Argument of Justice Powell

Mr. 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 this much media coverage and scholarly commentary more than 60 briefs were filed with the Court.

We also have received the advice through the media and 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 maybe fair to say that we needed all of this advice.

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

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

In so far, as the California Supreme Court held that Bakke must be admitted to the Davis Medical School, we affirm.

In so far, as the California Court prohibited Davis from considering race as a factor in admissions, we reverse.

I will not try to explain how we divided on these issues.

This may not be self-evident from a high to examination of 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 maybe considered.

As we will be perceived at this point, if the answer to the second question were negative, i.e. that race may never valid that they 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 admission program.

If however, the second question were answered affirmatively, i.e. that race maybe considered, then it becomes necessary to address the first question separately, i.e. 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 a statutory issue and the Constitution under which is presented the equal protection 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 that view Congress has answered that question in Title VI.

They 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 as 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 it on the Equal Protection Clause, Justices Brennan, White, Marshall and Blackmun in that giant opinion hold not only that race properly maybe considered but also that the special admissions program of the Davis Medical School is valid in every respect.

When I have concluded Mr. Justice Brennan will state disposition 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 questions.

On the first of these whether the special admissions program as invalid.

I agree with the result reached by Mr. Justice Stevens' opinion.

But I do so on constitutional grounds rather than under Title VI.

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

Under this judgment, Bakke will be admitted to the Medical School.

As to the second constitutional issue, whether race maybe considered as a factor in an admissions program, I agree with the result reached by the join opinion of Mr. Justice Brennan and my brothers who have joining him.

Thus, there are five justices who joined on 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 and as other justices will speak, I will merely make a brief conclusary summary.

The Davis' special admissions program with 16 at 100 seats reserved exclusively for three categories of a unities is a classification based on race.

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

Although adapted 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 law.

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 interest thought to be compelling.

One is the desire to address 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 finding that this imbalance is traceable to discriminatory practices.

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

In my view, the only state interest that fairly maybe viewed as compelling on this record is the interest of a University in a diverse student body.

This interest encompass 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 that 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 16 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 it is 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 maybe 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 and here I quote the in substance.

The admissions committee has not set target quotas for the number of blacks or musicians, football players, physicist, or Californians to be admitted in a given year.

Awareness of a need for diversity means only that in choosing among thousands of academically qualified applicants, the committee, with a number of criteria in mind, pays 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 the number of other factors being 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 a briefs in this case and the literature in this area abundantly illustrate.

Many of our finest universities and colleges pursue a flexible competitive admissions program in which race maybe 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 attain 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 adapt the type of admissions program proved to be successful in so many of the universities and colleges of our country.

Argument of Justice Stevens

Mr. Stevens: The University of California through its special admissions policy excluded Allan 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 VI 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 a 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, be 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 express the concern that the Act would be read as mandating racial quotas in racially balanced colleges and university.

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

One supporter of the Act express disposition in these words, "The basic fairness of Title VI 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 the Senators must be our Government.

Title VI closes the gap between our purposes at the democracy and our prejudices as individual.

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 it would be paraphrased and repeated throughout the congressional debate.

Senator Pastore, the Floor Manager of the bill clearly stated the intent of Congress.

Title VI 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.

During 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 and against Davis, an employment discrimination case arising under Title VII, the Court stated: "We have never held that the constitutional standard for adjudicating claims of invidious racial discrimination is identical to the standard applicable under Title VII", and we declined to do so today.

And in other Title VII 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 they Negroes.

Quoting from our earlier decision in Griggs against Duke Power, the Court reaffirmed the principle that the statute prohibits discriminatory preferences for any racial group minority or majority.

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

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

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

Two questions remain.

First even though the statutory ground of 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 Spector Motor against McLaughlin.

"If there is 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 the issue, the more force there is to this doctrine.

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

Finally, should the Court volunteer its views about the University admissions program 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 in opinion.

This lawsuit is between two specific litigants, Allan Bakke and the Regents of the University of California.

The judgment now before us as we explained 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 to we have a duty equally strong and equally engrained in the constitutional structure of our government to avoid discussion of important issues not presented by the controversy before us.

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

Not withstanding the pressure that tempt does to speak about other issues, well-settled principle 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 exceed its proper judicial remold.

Argument of Justice Brennan

Mr. Brennan: 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 and so far as it prohibits the university from establishing race conscious programs in the future but also in so far as the the judgments orders that respondent Bakke be admitted to the Davis Medical School.

As this 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 constructs and a majority consisting 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 strikes sound as unusual that is the dissenters' to make construction, rest their affirmance of the California Supreme Court on their construction of Title VI 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 violates the Equal Protection Clause.

And our brother Powell as he has said also affirms the California Supreme Court in so far as the directed Bakke's admission but on the ground even though I know I am repeating that make itimportant to be emphasized reaching the Constitution Davis' special admissions program is unnecessary, in his view that the achievement of the compelling goal in achieving a diverse student body.

Though in consequence only five member of the Court addressed the constitutional question of unique 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 the vehicle for confronting that issue after avoiding it on loop in these grounds in the defendant's case.

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

Five of us, a Court majority, reversed the judgment of the California Supreme Court in so far as it prohibits Davis from establishing race conscious admissions program in the future.

Thus, the central meaning of today's opinions is this, government may take race into account when an acts not to demean or insult any racial group but to remedy disadvantages caused by minorities by past racial and prejudice at least when appropriate findings have been made by judicial legislative or administrative bodies with confidence to act in this area.

Now the opinion of the four of us is some 55 pages and of course I shall only briefly touch upon its highlights.

The first half addresses the threshold question of the construction of Title VI although the dissenters have the view that there is a private right of action under Title VI.

Three of the four of us agree with our brother Powell that this case does not 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 VI.

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 beyond question, the Title VI was not intended to bar state affirmative action problems not barred by the Equal Protection Clause itself.

In other words, the legislative history contrary to the dissenters' reading provides no support for the preposition that Congress intended to impose statutory limitation upon constitutionally permissible racial preferences designed to extend the benefits of federally financed programs for racial minorities that historically have been excluded from the full benefits of American life as a result a 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 VI must be held to prescribe only those racial classifications that would violate the Equal Protection Clause or the Fifth Amendment."

My 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.

Candor requires acknowledgments that the Framers of our Constitution, to forge the 13 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 into the actuality of equal opportunity for all regardless a 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 200 years as a nation, and for half of that half the Equal Protection Clause of 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, only 24 years ago, where this odious doctrine entered by our decision in Brown v. Board of Education.

Brown won and its progeny which proclaimed that separate schools and public facilities of all sorts are 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 with their obligation to eliminate racial discrimination root and branch, and a glance to 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 law must be color blind or that the datum of races no longer relevant to public policy must be seen as aspiration rather as description of reality.

This is not to denigrate aspiration; but reality rebukes us that race has often been used by those who was stigmatized and oppress minorities.

Yet, we cannot and as our opinion attempts to demonstrate need not under our Constitution like 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 the preposition 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 irrelevance summed up by the shorthand phrase, "our Constitution as color blind", has never been adapted 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.

Decision sustaining affirmative action programs of the Congress and federal agencies, supporting the conclusion that nothing whatever in the history of the Fourteenth Amendment of the Civil Rights Act even remotely suggests that the states are foreclosed from furthering the fundamental purpose of equal opportunity to which the Amendment and these acts are addressed.

Our opinion next turns to the program 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 servied by Davis' affirmative admission program to see if they are compelling.

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

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

Our opinion adapts a standard somewhere in between.

Because of the significant risk that racial classification established ostensibly benign purposes can be misused causing effects not unlike those created by invidious classification.

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 well represented on the political process, the 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 in searching nonetheless.

The opinion next analyzes the Davis program by that standard and concludes that it passes constitutional master as a permissible programs to remove, the disparate racial impact its admissions program might otherwise have and with adapted on the basis of the reasonable belief that disparate impact is itself, the product of past discrimination whether the universities or that of society at large.

It is not even claimed that the Davis program operates to stigmatize or single out any discreet and inferior or even any identifiable non minority group.

Bakke was not in any sense stamps as inferior but the Medical School's rejection of him, indeed it considered by already satisfied those criteria regarded by the school that it generally relevant to academic performance but as in most of the minority members were admitted.

In addition, there are simply no evidence that the Davis program discriminates intentionally or unintentionally against any minority group, which it supports the benefits.

The program does not establish a quota in the invidious sense of a sealing on the number of minority applicants to be admitted nor can the program reasonably re-regarded as stigmatizing the programs beneficiaries or that race as inferior.

It is uncontested that Davis admits only those minority applicants in its special program who are fully qualified to study Medicine.

Once admitted these students must satisfy the same degree requirements as regularly admitted students, they are taught by the same faculty in the same classes, and their performance is evaluated by the same standard by which regularly admitted students are judged.

Under these circumstances their performance and degree must be regarded equally with the regularly admitted students with who may compete for standing.

Our opinion finally comes to our reasons for disagreeing that the set aside of 16 places under the Davis program requires the conclusion that Bakke was unconstitutionally denied admission.

Davis' special admissions program cannot, in our view, be said to violate the Constitution simply because they have 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 applicant.

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

It is inescapable that in any admissions program which extends a preference to disadvantaged racial minorities a decision must be made as to how much of the preferences 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 on minority applicants to a particular school are 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 a preference with the expectation that this will result in the admission of 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 concedes openly and successfully employs a racial criterion for the purpose of ensuring that some of the scariest places in the institution to 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 working of the system while the Davis program employs a specific openly stated number does not, in our view, condemn the latter plan for purposes of the Fourteenth Amendment, it maybe that the Harvard plan is more acceptable to the public generally than is the Davis program.

If it is, any state including telethon is free to adapt 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 program.

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

Argument of Justice Blackmun

Mr. Blackmun: Mr. Justice Powell has stated that this case is intrinsically difficult, perhaps so perhaps not.

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

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

This case like the death penalty issues that had been before the Court in years last passed like the abortion cases, like the schools 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 flat.

For me this case is distinctly a constitutional and not as statutory case, and because it is I have joined my brothers Brennan and White and Marshall in the opinion Mr. Justice Brennan has just described.

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

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

First, until just a few years ago in the early 1970s a very small number, less than 2%, 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, Harvard here in Washington and Meharry 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 shall see a time when race consciousness is a far less significant factor in our national life that it is today.

When that time will come I do not know but when it comes, the affirmative actions so-called a reversed 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 it sadly the case today but there is a denial to the deserving.

This inescapable fact is brought under sharp focused here because Allan Bakke is not himself charged with discrimination and yet he is one who is disadvantaged and because the medical school of Davis itself was not charged historically with discrimination.

Next, for me there is no particular or very real significance in the 84-16 division of Davis.

The same legal and constitutional considerations necessarily apply if the Davis special administration program had focused on any lesser number that is on 12 or 8 or 4 or indeed on only one place.

It is somewhat ironic to have a so deeply disturbed by this case, which concerns a 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 promise in 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 admissions are basically a responsibility for the academicians.

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

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

The deference 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 has set forth in his opinion embraces a so-called brother principle that the Amendment did when it was adapted in 1868, 110 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 the 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 employed by the amici here Harvard and Stanford and Pennsylvanian 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 accomplished 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 veteran's preference or 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 words of the government.

Nevertheless, the preferences exist and we have accepted them.

I suspected 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 ultimate question that it was at the very beginning and is this, among the qualified how does one choose?

In putting that on the framework of constitutional considerations and requirements it seems to me that we get back to the basics.

Not to risk have been repetitious, I think it brings back with a very great Chief Justice known as the Great Chief Justice said a long time ago.

Well, 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 were 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 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 basic to our constitutional law.

And today again, for the four of us anyway and the five others I think we expound the Constitution in the same principles that governed McCulloch case in 1819, governed Bakke's case in 1977 and '78.

For me, there could be no other answer and there is no alternative.

Argument of Justice Marshall

Mr. Marshall: In some of what I have to say will be repetitious when I feel oblige to say it.

I agree with the judgment for this Court only in so far as it permits the University to consider the race in making admissions decision.

I do not agree the petitioner's admissions program violates the Constitution or 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 drag to this country in chains to be sold into slavery and the system of slavery brutalized and dehumanized 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 have established machinery to protect the system of slavery through the promulgation of the Slave Codes, which were designed primarily to defend the property interest of the owner in his slave.

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 Thirteenth, Fourteenth and Fifteenth Amendment, 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.

They 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 rights of Negroes 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 right for 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 could curtail their substantive protections.

Then in the notorious Civil Right Cases the Court strangled Congress' 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 remodeling 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 upon color or to enforce social as distinguished from political equality or commingling of the two races upon terms unsatisfactory to either."

Ignoring totally the realities of position of the two races.

Mr. Justice Harlan's dissenting opinions 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 had, up until that time, been limited primarily passenger 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 20th century.

In 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 also well established.

The position of the Negro today in America is the 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.

A Negro child today has a life expectancy which is shorter by more than five years than that of a white child.

That is today.

The median income of the Negro family is only 60% of the median 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 that America offers him significantly less than it offers his white counterpart.

For Negro adults, the unemployment rate is twice that of whites, at least whites, and the unemployment rate for Negro teenagers is three to four times that of white teenagers.

I am talking about today.

The relationship between these figures and the history of unequal treatment offered to the Negro cannot be denied.

And I even heard it deny.

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

In light of the sorry history of discrimination and its devastating impact on the lives of 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 ensure that America will remain a divided society.

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

Neither its history nor our past cases lend any 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 to 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 entity of the 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 the great melting pot has not been realized for the Negro; because of his skin color, he 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 a 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 v. Ferguson, to hold that the Equal Protection Clause forbids differences 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 colorblind" appeared only in the dissenting opinion, the majority of that Court rejected the principle of color blindness and for the next 60 years from Plessy to the Board of Education ours was a nation where,by 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 permit the institutions of this society to give consideration to race in making decisions about who will hold the positions of influence, prestige and influence in America.

For far too long, the doors to those positions 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 or her, we must be willing to take steps to open those doors.

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

It had been said that this case involved only the individual Bakke and nobody else.

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

I doubt, however, that there is a computer capable to determining the number of person in 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 27 federal agencies have adopted regulations requiring recipients of federal funds to take "affirmative action to overcome the effects of conditions which resulted in limiting participation by persons of a particular race, color, or national origin."

I cannot even guess the number of state and local governments that has 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 the movement toward complete equality through affirm the actions.

And then For almost a century, no action was taken, and this nonaction was with 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 have 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.

Rebuttal of Chief Justice

Mr. Justice: Thank you gentlemen.