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The Precedential Value of
Justice Powell’s Opinion
in
Regents of the University of California v. Bakke 438 US 265 (1978)
Alex Thorn
History 310
Mr. Chris Gurry
May 23,
2003
(Footnotes
contain citations and, more importantly, additional information)
In Gratz, et al. v. Bollinger, No. 02-516, argued April 1, 2003, the Supreme Court will address
the constitutionality of University
of Michigan’s use of affirmative
action in education for the first time in many years. The “University
of Michigan case”
has received great attention nationwide from education, corporate and
government leaders because this case should finally resolve the controversy
concerning the use of affirmative action to promote diversity in education.
The use of affirmative action for diversity in education was first endorsed
legally by Justice Lewis Powell in
Regents of the University
of California v. Bakke (hereinafter referred to as “Bakke”), a landmark case in affirmative
action jurisprudence. In Bakke,
Justice Powell wrote the “Opinion of the Court” although no other justice
endorsed his opinion in full, and no “majority opinion” was ever written.
Given the unique posture of Justice Powell’s opinion in Bakke, its meaning and lasting precedential value have been widely
debated among legal scholars. It is
likely that the Supreme Court will finally resolve the controversy concerning
the significance of Justice Powell’s opinion in Bakke when it decides the University
of Michigan case a few weeks from
now.
In Regents of the University of California v. Bakke,
the court decided that race could be considered in university admissions. A
white student, Allan Bakke, who had been rejected twice from the medical school
at the University of California at Davis (hereinafter referred to as “U. Cal.
Davis”), filed suit against the
university, claiming that the use of racial quotas was illegal. Bakke presented the Supreme Court its first
opportunity to consider the merits of a white person’s challenge to the idea of
affirmative action,
originally promoted by President Johnson in Executive Order 11246. And,
because the issue of affirmative action was so controversial, the Supreme Court
was split on the issue, initially with four votes opposed and four votes in
favor. In fact, it was the final vote, cast by Justice Lewis Powell, which
decided the case and set the precedent for which Bakke is known. Ultimately, Justice Powell decided that the use of
"racial quotas" was illegal and that a university may only use
affirmative action as a method to A) remedy past wrongdoings that the
university itself had committed or B)
to create/maintain diversity within its student body. However, since the
decision in 1978, the precedential value of Powell's decision and his
“diversity” argument have been called into question.
Until
1978, when Bakke was heard by the
Supreme Court, the only uses of affirmative action had been to remedy either
“societal discrimination” or past discrimination committed by the entity practicing
the affirmative action – remedial affirmative action. In his opinion, Justice
Powell created a new branch of affirmative action – non-remedial –
and introduced the notion that an educational institution may practice
affirmative action to maintain diversity within its student body. In fact,
rather than approve of affirmative action for the idea of reparations, Powell
based his opinion on his belief that diversity was a legitimate goal as an
educational principle. To justify the fact that allowing race to be used as a
way to maintain diversity would inherently discriminate against some
non-minorities, and therefore would violate the “non-discrimination” principle
of Title VI of the Civil Rights Act of 1964 and the 14th amendment,
Powell concluded that diversity in education was a compelling enough government
interest to supercede the non-discrimination principle. And, since he made that
conclusion, the impact on American universities has been staggering: between
1988 and 1995, overall African American enrollment has increased by 30%,
Hispanic enrollment by 50%.
Since the Supreme Court
decided Bakke, Powell’s introduction
of the “diversity” notion has been the only non-remedial type of affirmative
action practiced by educational institutions. Therefore, if the Supreme Court
in the University of Michigan case were to decide that diversity was, in fact, not a compelling enough government
interest to outweigh the non-discrimination principle in the 14th
amendment and Title IV, all non-remedial affirmative action currently being
practiced would be determined illegal.
In
Bakke, the Supreme Court examined the issue of affirmative action in the
admissions process of the U. Cal. Davis medical school. The U. Cal. Davis
medical school reserved 16 out of 100 seats in each class for
"disadvantaged" minority students. This "quota" system, keeping a
certain number of spots open only for certain people, was, ultimately, ruled illegal by the Supreme Court. After being
rejected twice from the medical school, a white student, Allan Bakke, filed
suit in California state court, "challenging the constitutionality of the
University's admissions process on the grounds that the school's consideration
or race in the admissions process denied him his right to equal protection of
the law and caused his rejection by the medical school."
Initially,
there were four against the U.Cal. Davis Medical School program (Chief Justice
Burger and Justices Stewart, Rehnquist, Stevens) and three in support of the
program (Justices Marshall, Brennan and White). Later, Justice Blackmun cast
his vote in favor of the University, bringing the overall vote to four in
favor, four opposed, and leaving Justice Powell to cast the final vote and
determine the outcome of the decision.
Powell’s
opinion is often referred to as the “great compromise” because he provided the
final vote that both solidified the decision, in favor of Allan Bakke (5-4) as
well as to overturn the California Supreme Court’s prohibition of race
consciousness under any circumstance.
Powell
played the role of "compromiser," ruling that Allan Bakke had to be
admitted into the medical school, but not because affirmative action was
illegal, but ruling instead that the process by which the U. Cal. Davis Medical
School practiced affirmative action - filling racial quotas to remedy societal
discrimination - was illegal. In order to arrive at this compromise that
outlawed some but not all affirmative action programs, Powell had to make the
clear distinction between using a "racial quota" and simply setting
the goal to accept a certain number of minority, or disadvantaged students. Because
using a quota intrinsically excluded some students from the right to one of a
set number of seats, Powell stated that quota's were "inherently
suspect" and could only be justified in certain
“special” circumstances.
Powell
rejected two venerable arguments favoring affirmative action: that there was a
need to provide role models for a subordinate group and that there was a need
to remedy societal discrimination (reparations). Powell paid little attention
to the "role model" argument, stating that it was merely a
"subgoal" anyway. However, he delved deeply into the issue of
affirmative action as a method to remedy societal discrimination.
In rejecting the argument of societal discrimination, Powell stated that
"there is no principled basis for deciding which groups would merit
'heightened judicial solicitude' and which would not.... Those whose societal
injury is thought to exceed some arbitrary level of tolerability then would be
entitled to preferential classifications at the expense of individuals
belonging to other groups."
Essentially, Powell argued that if you favor one group because of past
injustices, the door is opened to "competing claims for 'remedial relief'
for every disadvantaged group."
In fact, Powell’s dissatisfaction with favoring some minorities over others is
what led him to the seminal “diversity” argument.
Once
Powell rejected the two previous points, he was only left to consider U. Cal.
Davis Medical School’s argument that its program was justified as a way to
obtain a diverse student body. This argument has worked in certain
circumstances, such as when a school attempts to reverse a trend of a
predominantly white student body,
a concept known as “remedial diversification.” Justice Powell decided
confidently that the right of U. Cal. Davis Medical School to decide the
composition of its student body "clearly is a constitutionally permissible
goal for an institution of higher education."
Later, Powell quoted former Supreme Court Justice Felix Frankfurter, also a
former Harvard Law
School professor and Supreme Court
Justice, who, in Sweezy vs. New Hampshire
said that the right to decide "who may be admitted to study" was left
to the universities themselves. The right of an institution to practice
affirmative action in order to, as Powell said, “maintain a diverse student
body,” has proved to be the only lasting argument in favor of affirmative
action.
Basing
his position on the admissions processes at Princeton
and his alma mater, Harvard, Powell stated that a university may take race into
consideration as a "plus" factor, as long as one’s race or surname
was not the only factor used to determine admission to the university. Powell explained
that a student without the "plus" factor who "missed out on the
last available seat"
would not have missed out solely based on his ethnic background. Rather, Powell
continued, his missing out "would mean only that his combined
qualifications, which may have included similar nonobjective factors, did not
outweigh those of the other applicant,"
whose factors included the "plus" factor. Powell recognized that race
may be taken into consideration, but only in the same fashion that other
factors are used, such as geography and economic background. Essentially,
Powell's opinion rested on his belief in the importance of academic freedom,
even though he rejected Davis'
claim that it had the right to determine the "best means to preserve or
ensure its desired student diversity."
And, because Powell introduced the idea of diversity and rejected the role of
reparation as a motive for affirmative action, Powell delegated authority to
academic institutions to embrace all kinds of groups outside the mainstream and
not just blacks and Native Americans, both of whom are understood to have been
subject to generalized disadvantages. Perhaps Powell felt that other groups
might be so defined in the future. Perhaps he feared shifting definitions of
"generalized disadvantages." Or, perhaps he hoped that schools could
"create" idealized diverse communities, even at the risk of
compromising the integrity of the 14th Amendment. Regardless as to his motives,
it was his opinion that became the precedent Bakke is known for.
Because Powell's vote was
the deciding vote in favor of allowing some type of affirmative action and
because his opinion was referred to as the "Opinion of the Court,” many
people have treated his opinion as precedent for using diversity in university
admissions programs. Essentially, only
because Powell's vote came last, his justification
of Davis' admissions process became
the precedent set.
Not only was Powell alone in his argument that a university has the right to
use affirmative action in order to diversify/maintain diversity within its
student body, but the word "diversity" wasn't even mentioned in the other two court
opinions. Therefore, there has been much debate over whether or not Bakke really is the “landmark” case it
is known as. For that reason, the validity and precedent of Powell's decision
that Universities may use affirmative action only to diversify student bodies has been called into question many
times, including the recent University
of Michigan case.
In the University
of Michigan case, the defendants
have argued that the Opinion of the Court in Bakke explicitly states that using affirmative action as a means by
which to maintain diversity in universities is legal. Essentially, the
defendants argue that their program is no different than the one that Justice
Powell determined acceptable in his "precedent setting" decision.
Conversely, the plaintiffs have argued that, because the idea of using
affirmative action in order to promote/maintain diversity was only mentioned in Powell's opinion and
was not the opinion of the overall majority, no precedent had been set in terms
of diversity. The plaintiffs cite Hopwood
v. Texas (hereinafter referred to as “Hopwood”) in which the Fifth Circuit
decided held that the Equal Protection Clause of the 14th Amendment
"prohibited the University of Texas Law School from taking account of race
as a factor in its admissions process."
In that case, the Fifth Circuit threw out Powell's notion that using
affirmative action to maintain a diverse student body was legal, for it
"was not a compelling state interest under the Equal Protection
Clause." The defendant in the University of Michigan case, the university itself, has
argued that, based on the Supreme Court standard doctrine of "stare
decisis,”
Powell’s decision in Bakke must be
followed and the university must be allowed to continue to practice affirmative
action to maintain a diverse student body.
Because
the University of Michigan
case does not involve affirmative action programs designed to remedy past
discrimination, this
case presents the Supreme Court with the opportunity to accept or reject
Justice Powell’s diversity justification for affirmative action, and will
determine the fate of non-remedial affirmative action. The Supreme Court could
decide on the one hand that maintaining a diverse student body is never a
compelling enough “government interest” to merit going against the
non-discrimination described in the 14th amendment, and therefore
rule that all non-remedial affirmative action in education is unconstitutional
and illegal. Or, the
Supreme Court could find that diversity is a compelling government interest and conclude that the University
of Michigan’s admissions process is
constitutionally legal. Or alternatively, even if the Supreme Court endorses
Powell’s diversity justification for affirmative action, the Court may follow
that Powell’s conclusion that race may only be used as one objective factor out
of many, and find that U. Michigan’s process is unconstitutional because it
clearly awards more points to race than anything else.
However, because there is
so much debate over affirmative action and whether or not there is enough
compelling government interest to outweigh the non-discrimination principles in
Title VI and the 14th amendment, it is hard to know how the Supreme
Court will interpret Bakke in
assessing the University of Michigan case. In Smith v. University of Washington the
9th Circuit court upheld Powell and accepted his opinion as the
overall decision of the court because his was the most limited opinion within
the majority, a law theory established in Marks
v. United States. However, in Hopwood, the 5th Circuit rejected Powell’s notion of
affirmative action as a means to maintain diversity because it was not a “narrowest”
view of the majority,
rather, “diversity had nothing to do with the remediation of past
discrimination.”
Essentially, the 5th Circuit overruled Powell’s notion of
educational diversity in Texas
because his idea of affirmative action to maintain diversity was not the
majority opinion of the Court; rather, Powell was alone in his opinion. A
similar split of opinion has occurred in the federal district courts addressing
the affirmative action program in the University
of Michigan case.
On the one hand, in Gratz v. Bollinger,
the Federal District Court upheld Powell’s precedent that a “university could
consider race as factor in student selection, in order to further [the]
objective of obtaining diversity in [the] student body.”
While, in the Federal District Court case against the University of Michigan
Law School’s admissions program, Grutter
v. Bollinger,
a different District Court rejected the argument that Powell’s opinion was
precedential because his was the narrower view, stating that the remedial
rationale and Powell’s diversity rationale are “completely different
rationales, neither one of which is subsumed by the other.”
Ultimately,
the future of non-remedial affirmative action in our educational institutions
comes down to one question: Is achieving/maintaining diversity
in our universities a compelling enough government interest to supercede the
principle behind non-discrimination in the 14th amendment?
Powell said that it was, but only if all races and diversification factors were
included; racial diversity was not enough.
However, because there is dispute over whether Powell’s decision truly holds
any precedential value, the importance of his opinion on whether using
affirmative action to maintain diversity is a compelling government interest is
debatable at best. Whether
or not the Supreme Court concludes that Justice Powell’s opinion has any
precedential value using a Marks analysis may be immaterial,
however. Ultimately, the outcome of the University
of Michigan case will necessarily
turn on, at least partially, each Justice’s moral view of affirmative action. No
matter what the Supreme Court decides in the University
of Michigan case, Justice Powell’s
contribution to the affirmative action debate
has been tremendously important because his lone opinion is what has allowed
the debate to continue for the past twenty-five years, while the opinions of
the other Justices would have ended that debate, one way or another.
INDEX OF CASES CITED/MENTIONED
Adarand Constructors, Inc. v. Pena, 515 U.S.
200 (1995)
City of Richmond
v. J.A. Croson, 488 U.S.
469 (1989)
DeFunis v.
Odegaard, 416 U.S.
312 (1974)
Gratz, et al. v. Bollinger, No. 02-516 (2002>)
*Supreme Court case that isn’t yet decided
Gratz, et al. v. Bollinger, 122 F.Supp.2d 811
(E.D.Mich. 2000)
Grutter v. Bollinger, No. 02-241 (2002>) *Supreme
Court case that isn’t yet decided
Grutter v. Bollinger, 137 F.Supp.2d 821 (E.D.Mich.
2001)
Hopwood v. Texas, 78 F. 3d (5th Cir.),
cert. denied, 116 S. Ct. 2581 (1996)
Luther Church-Missouri v. FCC et al. Wessman,
160 F. 3d (3rd Cir. 1998)
Marks v. United
States, 430 U.S.
188 (1977)
Metro Broadcasting, Inc. v. FCC, 487 U.S.
547 (1990)
Regents of the University
of California v.
Bakke, 438 US
265 (1978)
Smith v. University
of Washington, 233 F. 3d
1188 (9th Cir. 2000)
Sweezy v. New Hampshire,
354 U.S. 312
(1957)
United States
v. City of Miami, 614
F. 2d 1322 (5th Cir. 1980)
Wygant v. Jackson
Board of Education, 476 U.S.
267(1986)
BIBLIOGRAPHY
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Boston College Law Rev., “Many Billions Gone: Is it time to
remember the case of Black reparations?” by A. Westly,
December 1998
Boston Public
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Brigham Young
University Education and Law
Journal, “The Role of Public Opinion in Constitutional Interpretation.” James G
Wilson 1993
Brooklyn Law Rev., “How the Supreme
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University of Chicago
Legal Forum, “Thoughts on Bakke and It’s Effect
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Kim Forde-Marrin, August 2000.
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Harv. Civ. Rights-Civ. Liberties
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Harvard Law Rev., “A Memoriam: Lewis F. Powell.” January
1999
Harvard Law Rev., “Educational Diversity No Longer
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Ball, Howard. The
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Spann, Girardeau. The Law of Affirmative Action: 25 Years
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Brown to Bakke: The Supreme Court and School Integration. Oxford:
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