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1-1977

Is Affirmative Action Reverse Discrimination?George J. AlexanderSanta Clara University School of Law, gjalexander@scu.edu

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Automated CitationGeorge J. Alexander, Is Affirmative Action Reverse Discrimination? , 5 Student Lawyer 16 (1977),Available at: http://digitalcommons.law.scu.edu/facpubs/649

The High Court and the Bakke decision:

Is AffirmativeAction ReverseDiscrimination?

Many who have examined Bakke are shocked not somuch at the nature of the injury inflicted on specialadmissions programs as at the fact that the assailant wasthe Supreme Court of California. To those who havewatched that court in its strict enforcement of compul-sory integration of secondary schools, for example, itseems strange indeed.

Even a member of the court, Justice Mathew Tobrin-er the sole dissenter in the Bakke case - was startledby the result. He wrote, "It is anomalous that theFourteenth Amendment that served as the basis for therequirement that elementary and secondary schoolscould be compelled to integrate, should now be turnedaround to forbid graduate schools from voluntarilyseeking that same objective."

The court was obviously concerned about ThirdWorld entry into the professions, and the decision'sauthor indicated that he accepted the importance ofThird World admission to medical schools as, arguendo.a compelling state interest (the highest level of interestunder equal protection). The Supreme Court of Washing-ton in the De Funis case had expressly found that thestate had a compelling interest in special admissionsprograms. Nonetheless, the California court struck downthe scheme chosen to achieve that end - relying on whatappear to me to be two major fallacies concerning equalprotection.

The first fallacy is to be found in the court'sacceptance of the idea that equal protection is anindividual, as opposed to a group, claim. It makes a greatdifference whether Bakke be allowed to claim that hewas discriminated against personally, as opposed to 16other people specially admitted to the medical school, orwhether he is seen as pressing a claim for all otherssimilarly situated, as in white males, against the personsadmitted through the special admissions program. (Al-though the majority opinion talks about the possibilityof subgroups within the larger group of white males,there is no indication that Bakke was a member of anygroup more deserving of special admissions attentionthan his Caucasian race.) It is difficult to make a claimthat white males, as a group, require special assistance inadmission to medical schools.

While there is language in equal protection caseswhich suggests that equal protection is an individualright, that idea seems difficult to square with the natureof the equal protection claim. An equal protectionclaimant must necessarily attack a classification. Theresult of abandoning the classification will necessarily beto treat those previously classified separately in the samemanner as others in a more favored group. Bakke, ineffect, asked that the favorable minority group classifica-tion be ended. If his claim is correct, it must of necessitybenefit all others not in the favored minority

By George J. Alexander

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R. KNOLAN BENFIELD JP GL.OBE

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group - namely all whites. Benefiting whites as a groupat the expense of minorities as a group sounds a lot lessattractive than one individual's claim to personal equali-ty.

That brings us to the second error in the court'sopinion: its acceptance of the idea that equal protectionapplies equally to all groups. While the court recognizesthe potential importance of racial discrimination de-signed to increase Third World presence in the profes-sions, it ultimately succumbs to the idea that racialclassification is almost impossible to justify, whateverrace is disadvantaged. That finding ignores the fact thatthe Fourteenth Amendment (which brought equalprotection into the Constitution) was part of a trilogy ofamendments designed to end the vestiges of slavery. Italso ignores the fact that the compelling state interesttest on which it relies is a special test reserved for selectedcases: those affecting special constitutional rights (notrelevent here) and those affecting politically impotentgroups. All other equal protection cases are reviewedunder later standards.

It was precisely because of the political impotence ofracial minorities that the United States Supreme Court

Would Bakke havesucceeded in a suit

claiming disadvantagebecause he lived in

the wrong place?Certainly not

announced that it would require a compelling stateinterest to justify using race as a classifier. No suchinterest was ever found by the California SupremeCourt. By contrast, all claimants who objected tounequal application of state regulation governing com-merce were relegated to the rational relationship test andall failed in the court. The court saw them as not in needof special protection. If there are reasons for requiring ashowing of a compelling state interest to use race in aclassification that disadvantages minorities, surely thereis no reason to require so high a standard when racialclassification disadvantages a less politically impotentgroup.

Another way of stating the same point is to say thatBakke was disadvantaged by a number of preferences.The school preferred applicants from some geographiclocations to applicants from others; the school preferredphysicians planning to practice in certain fields ofmedicine over others. Would Bakke have succeeded in asuit claiming disadvantage because he lived in the wrongplace or planned to practice the wrong type of medi-cine? Almost certainly not.

What then singles out race as requiring so high astandard of justification? It is the political impotence of

racial minorities who have previously complained ofdiscrimination against them. Without that basis, there isno reason to be more concerned about racial preferencethan geographic preference. (Of course there are in-stances in which it is not easy to distinguish racialclassifications which benefit racial minorities from thosewhich act to their detriment. Professional special minori-ty admissions, however, is not one.)

The court makes a good deal of the social cost ofspecial admissions programs. It points out that specialadmissions programs impose a badge of inferiority on allracial minority applicants accepted. If that is correct, itmust still be balanced against the claim made by theUniversity of California that the present alternative toprograms of the sort at Davis is to return to the patternof admitting whites almost exclusively.

The social balance is a difficult one. The real vice inBakke, however, is that the California Supreme Courtprecludes a state from weighing these alternatives andarriving at its own conclusion. It forbids any state toconclude that the costs of the program are sociallywarranted.

Finally, the decision recognizes that present admis-sions processes are not so sacrosanct that they must beused to the exclusion of somewhat more subjectivecriteria, such as interviews and recommendations. I thinkit important to note that at a time when the ratio ofapplicants to seats in professional schools (both inmedicine and in law) is so great, it is virtually certainthat a large number of well qualified applicants areturned away by all schools every year. Thus, it seems tome proper to view the admissions process as one ofselecting among a large number of qualified applicantsthose that best meet the academic objectives of theschool.

Many conceive of special admissions as "loweringstandards"; yet, until we know a good deal more abouthow to measure professional success, it seems extremelyimprobable that one can select from so large a group ofapplicants solely on the basis of formal credentials withany hope of picking the best doctors or the best lawyers.If that is true, why cannot a school select racial minorityapplicants (at least in the numbers in which they arepresently accepted) in preference to taking an entireclass of whites? The California court was willing topermit such selection for "disadvantaged" applicants.

At the time of this writing the Supreme Court of theUnited States has granted a stay, pending the filing of anappeal, which the regents of the University of Californiahave decided to do. The granting of the stay suggests thewillingness of the Court to make a decision on themerits. (And for the purposes of this discussion, I willassume the probability of such review.)

There are essnrtially five options for the Court. First,it can summarily affirm the decision of the SupremeCourt of California.

Second, it can summarily reverse that decision basedon clear conflict with prior law.

Third, it can find a procedural reason for avoiding theresult and perhaps even vacate the decision, as was donein De Funis v. Odegaard.

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Fourth, it can ameliorate the impact of the Bakkedecision, either by holding that discrimination againstwhites is not cognizable at all or, more likely, that it is

reviewable only under easier tests of equal protection.And finally, it can adopt the decision of the Supreme

Court of California insofar as it rules out racial prefer-ence and delete the portion of the opinion whichcontinues to authorize special admissions for so-calleddisadvantaged students. Other minor possibilities suggestthemselves, but the most likely conclusions are the lasttwo mentioned.

The single most likely conclusion appears to be theacceptance of the Bakke prohibition against racialpreference and the rejection of the special admissionsstandards for disadvantaged students. This half-Bakke'dsolution could be seen as an extension of a recent rulingholding employment discrimination against whites byaffirmative action programs to be cognizable under theCivil Rights Act. It would be consistent with anotherrecent decision holding that District of Columbia policeapplicants must pass a general screening test, althoughthat test has not been validated for police skills anddespite the fact that blacks disproportionately fail thetest.

Despite these, clues pointing to a restrictive result forminority admissions programs, other factors point towardwhat I believe to be the second most likely outcome: areversal based on finding the California court to haveapplied the wrong test.

The Burger Court has been reluctant to follow theWarren Court's lead in equal protection tests from thebeginning. In a number of cases, the Court has expresslynoted the possibility that the compelling state interesttest might be appropriate but that, since even therational relationship test was sufficient to invalidate thestate program, it would not decide which test wasrequired. The Court has also, without quite admitting it,adopted a number of intermediate equal protection testsin which the state's interest and the interest of theaffected group are balanced.

At the same time, the Court has developed a new

doctrine prohibiting irrebutable presumptions. Underthat doctrine, a legislative classification may be chal-lenged on the grounds that it irrebutably presumes adifference between those adversely classified and others.For example, if pregnant school teachers are required totake maternity leave at the end of their sixth month ofpregnancy, that may be viewed as an irrebutablepresumption that they are no longer fit to teach. On thatbasis, the Court may require that a functional test besubstituted for the "irrebutable presumption."

The test is an obvious alternative to equal protectionanalysis in dealing with the classification. And the Courthas also made it clear recently that it feels free to beselective in the application of the test from case to case.

The point of these comments has been to sketchsome of the present law of equal protection to show thatthe Burger Court has moved closer to balancing theequities in each claim and farther from the WarrenCourt's notion of clear strata of equal protectionenforcement.

George J. Alexander is dean of the University of SantaClara School of Law.

Since Bakke presents a state system far less outra-geous (to say the least) than the systems of enforcedsegregation reviewed in many of the prior cases, theBurger Court seems in a better position than was theWarren Court to act in favor of the affirmative actionprogram at Davis. While it seems unlikely that the Courtwould review and approve the special admissions pro-gram at Davis, it seems within the realm of possibilitythat it would see that the program should be judged by astandard more permissive than compelling state interest.

Once announcing that the test which the Californiacourt applied was the wrong one, the Supreme Courtwould then be in a position to reverse and remand thecase. Freed of the necessity of applying the compellingstate interest test, the Supreme Court of Californiamight very well then reverse itself.

Assuming that the High Court will take the betterpart of a year before it decides the Bakke case, there isstill the question of what one does in the interim. JusticeMosk spent a good portion of his opinion addressing that

The Court may acceptthe prohibition againstracial preference andthe rejection of

special admissionsstandards for students

question, indicating that it was not necessary that oneadmit students through a unitary admissions scheme. Infact, he specifically suggested the acceptability of asecond rung of admissions decisions made principally fordisadvantaged students.

Furthermore, he indicated the appropriateness ofrecruiting, interviewing and receiving letters of recom-mendation as aids in the admission of disadvantagedstudents. (He did, however, say that these factors mustbe racially neutral and must be applied in a raciallyneutral manner.) Finally, he seemed optimistic that suchan admissions program would not necessarily reduce thenumber of minority students enrolled in medical schooland might in fact increase them.

Unfortunately, Justice Mosk did not specificallypropose a definition of disadvantaged. For some schools,that will not matter; for them, the permission which theSupreme Court of California has given for abandoningspecial admissions will suffice. For those who want tocontinue, however, a difficult task lies ahead.

It seems to me that disadvantaged can be defined in aracially neutral way - and be applied in a racially

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Affirmative(continued from page 19)

neutral way without substantially diluting presentminority admissions programs. To the extent that it iscorrect that racial minorities have been disadvantagededucationally and economically (to mention but twoareas), those factors can probably be used as criteria fordefining disadvantaged.

For example, a factor in being disadvantaged maywell be some description of the neighborhood in whichthe applicant grew up. Economic disadvantage may bereached by questions concerning parental employ-ment and the need for the applicant to have worked.Educational disadvantage can be picked up by thequality of the secondary schools attended. Inquiry intonative language and language spoken by parents shouldalso be helpful. And some question about careerobjectives (even though one recognizes that studentscannot be held to them) seems useful.

I am not yet in a position to come up with a longer orbetter list, though during the next year I will continue totry to develop one. Believing as I do that disadvantageshave been disproportionately visited on racial minorities,I feel fairly optimistic that one can define them in such away as to make the new programs available to racialminorities.

It has always been true that special admissionsprograms have been open to some whites whose disad-vantages approximated that of racial minorities. It hasalso been true that some members of racial minoritygroups have not been given the benefits of specialadmissions consideration because they seemed less disad-vantaged than others. It would seem to me that one'snew disadvantaged-persons policy might well not gobeyond those present limits.

A second alternative is simply to hold fast towhatever special admissions program presently exists.Especially outside of California this seems an acceptableinterim solution. In a state, such as Washington, in whichthe Supreme Court has held special admissions to beconstitutionally appropriate, the decision seems mostdefensible. Similarly in New York, where the Court ofAppeals has upheld special admissions - at least indictum - one would seem to be in a defensible posture.

Alternatively, one might look to distinctions betweenthe Bakke holding and one's own situation. The Bakkedecision said that black doctors were not needed forblack patients. However correct that is, can it not beargued that black lawyers are needed for black clients? Isit not true that in criminal law, for example, there is agreat need for immediate rapport and client confidencein the attorney, and does not our experience show agreater likelihood of obtaining such confidence if blackpeople are provided black lawyers?

And second, Bakke indicated that the only problemwith the program was the failure of the state todemonstrate the necessity of this racial distinction as ameans of more fully integrating the medical profession.

The court viewed the Davis admissions program as aracial quota system. Perhaps one can distinquish one'sprogram as not being based on an established quota.Those in private schools can certainly note that Davis isa state school and that an argument can be made thatprivate schools cannot be challenged for similar pro-grams because there is no "state action." I personallyhave grave reservations about that argument, since theU.S. Supreme Court this term decided in Runyon v.McCrary that discrimination against blacks in Southernprivate schools can be reached under the Civil RightsAct. A similar finding about Northern private schoolsengaged in what the Court might see as racial discrimina-tion seems likely.

Nonetheless, one might argue that the foreclosureattendant on denial at free or inexpensive state schools isfar more damaging than denial at a full tuition institu-tion; the denial runs not only to admission to profes-sional training but to state subsidy as well.

There remains one last avenue. The Court expresslystated that cases requiring affirmative action could bedistinguished because they were premised on priordiscrimination. To the extent that it is possible to claimprior discrimination, one would seem able to provide anaffirmative program for its eradication. Indeed, onecould presumably be compelled to provide such aprogram under these circumstances.

A lot remains to be seen about this category ofrationale for affirmative action. For one thing, it is notknown whether any schools will willingly admit priordiscrimination. Both principle and fear of the mandatoryprograms that might follow probably militate againstthere being a large number.

Second, it remains to be seen whether claimants, suchas Bakke, will be able to prove that universities havepreviously discriminated. Somehow, the spectacle of auniversity pleading with a jury to find that it was in factguilty of past discrimination seems just a bit ludicrous.

And finally, it is not even completely clear whetherone is free to act because of one's past discrimination orwhether one must await some court or legislative orexecutive finding dictating a certain prescription forredress.

Bakke was, in my judgment, wrongly decided. Thereappears to me to be a substantial chance that theSupreme Court will reverse the case and direct that it beretried under a less rigorous standard. In the interim, itseems possible for schools to live with Bakke - if not toavoid it - without dismantling their minority admissionsprograms.

Coming in FebruaryTo take the chill off winter, watch for our specialsection in the February issue on summer lawprograms abroad. You'll get the complete rundownon what's available, how much they cost and whenand where to apply (which is sooner than you maythink).

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