Looking Back on Bakke

By Bo Links

The case cost me a lot of liberal friends. "How could you?" they protested. "Don't you realize the implications?"

I got involved in the dispute in 1974 when I went to work for Reynold H. Colvin, a respected San Francisco attorney and former president of the local board of education. He was my best friend's father, and he offered me a job after law school. "I have a civil rights case for you to work on," he said.

Some civil rights case. It was the very first legal matter I handled after graduating from law school. The client? A man named Allan Bakke. His contention? That the UC Davis medical school had wrongfully excluded him when it used a racial quota to make admissions decisions. You know the rest (Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265 (1978)).

Complicating things, from a personal perspective, was the fact that I was a graduate of not one but two campuses of the University of California (BA, journalism from UC Berkeley in 1971; JD, UCLA Law School in 1974). Litigating against the university I love was one thing; confronting the entire civil rights movement head on was quite another. The issues in Bakke cut to the core of constitutional values, splitting the left side of the political spectrum. I was a proud Democrat, a McGovern voter, and a Vietnam War protester. I had long, curly hair and a beard. Yet there I was, representing Allan Bakke, a white man who claimed the school had trampled on his rights because of his skin color.

When friends found out I was involved in the case, it just set them off. Opponents of the UC Davis quota patted me on the back and said, "Go get 'em." Defenders of the school's "special admissions program" accused me of subverting the noble effort to make up for past racial discrimination. They saw me as deliberately throwing a hand grenade at the 14th Amendment.

Prior to working on Bakke I had found the issues very difficult to wrap my arms around. Both sides seemed right to me. But once I got into the case, I came to realize that there's a distinction between individual rights and group rights. The 14th Amendment does not mention race, and it does not mention groups. It speaks of persons: "[N]or shall any state deny to any person [italics added] within its jurisdiction the equal protection of the laws." I focused on that phrase during the long hours I labored over our briefs for the state court appeal.

In fact, when the California Supreme Court decided the case in 1976, the majority and dissenting opinions highlighted these two approaches to equal protection. Justice Stanley Mosk, writing for the majority, spoke in terms of Bakke's rights as an individual, untethered to any group identity. The court's lone dissenter, Justice Mathew Tobriner (for whom I had worked as an extern in 1973), saw the issue much differently. For him, the question was whether the school could take steps to remedy the lack of minority-group representation at the medical school. For Justice Tobriner, group identity?and the lack of minority-group presence at the UC Davis medical school?was the trump card.

It was a hard case to discuss with friends and acquaintances because so many folks had set views, and I don't think anything I said changed anyone's mind. In fact, whenever I attempted to engage in a thoughtful discussion, the conversation quickly went downhill, submersed in waves of emotion and anger. This was one hot issue. It still is today, as we continue to struggle with the meaning of the 14th Amendment.

Every lawyer dreams of being able to persuade people. I am no different. With Bakke there was lots of arguing but precious little persuading. Being unable to convince people of the rightness of my client's cause was frustrating, and it made me nervous. If I couldn't move the folks I knew, how in the world would I write a brief that convinced the U.S. Supreme Court?

At least I was in good company. Four years before Bakke, another case reached the Supreme Court, only to be turned away at the eleventh hour. Marco DeFunis had sued the University of Washington law school, claiming he had been discriminated against as a white applicant for admission because the school applied different standards for minority applicants (DeFunis v. Odegaard, 416 U.S. 312 (1974)). The trial court had issued an injunction allowing DeFunis to enroll in the fall of 1971 pending the outcome of the litigation.

By the time the case had been fully briefed and argued at the U.S. Supreme Court, DeFunis was about to receive his law degree. The justices ducked the difficult legal question by declaring the matter moot. But the case did not die a quiet death. An impassioned dissent penned by Justice William O. Douglas made the constitutional issue come alive. A card-carrying liberal if there ever was one, Justice Douglas eloquently railed against the law school's use of race as an admissions criterion.

We all sat up and paid attention when he wrote that "[t]here is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner." (DeFunis, 416 U.S. at 336.)

The Bakke case involved exactly the same issue, and it touched the heart of what it means to be an American. In Bakke we argued that the government poisons the well when it uses race to award benefits. Racial decision making is dangerous business, regardless of whether race is used to benefit someone or to hold someone back. History has proven time and again that when race is a deciding factor, injustice often results. Indeed, when dealing with limited slots at a professional school, it becomes all but impossible to help one person without hurting another.

We also said something in Bakke that has been largely forgotten in the firestorm. We said that legitimate affirmative action programs?which give help based on need and not merely on race?have a vital role to play in advancing the day when everyone will be not only equal on paper, but equal in life. Though that day still eludes us, everyone can look back and say that we've come a long way together as a nation. The goal may still lie ahead, but at least we can begin to see it unfolding in real time.

Writing the briefs in Bakke was a lonely process. It occurred mostly in dusty libraries, and even under the dome of San Francisco's City Hall, where I reviewed the legislative history of the equal protection clause. The day the case came before the high court, however, was anything but lonely. People camped out all night long in front of the Supreme Court building in Washington, D.C., just for a chance to hear a few minutes of the oral argument. The amicus briefs alone produced a stack of paper three feet high.

It wasn't just that Bakke drew ink on every editorial page in America. Whenever I got into a taxi, someone was on the radio talking about the case, what it meant, and who should win. There was no escaping the media onslaught. Reporters dogged our office and, of course, we received countless requests to interview our client. To his credit, Bakke declined all requests. He was a quiet man who simply wanted the courts to explain his rights. He wanted to let the case speak for itself.

Looking back more than three decades to that October morning, I remember the argument vividly. Archibald Cox, the distinguished Harvard professor and former Watergate prosecutor, represented the medical school. His words still ring in my ears. He said the case involved great issues, and that the answer the Court gave would determine, perhaps for decades, whether minority students would have meaningful access to professional schools. The words of my mentor, Mr. Colvin, are also still with me: "I am Allan Bakke's lawyer, and Allan Bakke is my client." His point was simple and powerful: This was a case about individual legal rights, not group entitlement. "From the very beginning ... in the first paper we ever filed," he told the highest court in the land, "we stated the case in terms of [Bakke's] individual right." Bakke had been excluded from the UC Davis medical school, Colvin argued, "because that school adopted a racial quota which denied him the opportunity for admission."

We presented the case as a series of unanswerable questions: How does government make decisions in a multiracial society where people of all races struggle for equality? Are some more equal than others? How do we make up for the wrongs of the past without committing further wrongs against innocent people who had nothing to do with past discrimination?

The dilemma these questions posed is best expressed in the comments made by Justice Lewis Powell when he announced the high court's judgment. "Perhaps no case in modern memory," he said softly, "has received as much media coverage and scholarly commentary. More than 60 briefs were filed with the Court. ... And as we speak today with a notable lack of unanimity, it may be fair to say that we needed all of this advice."

But the judgment handed down by the U.S. Supreme Court in 1978 did not end the debate. The Court ruled 5?4 on two issues, with Justice Powell casting a swing vote in each. The majority determined that Bakke had indeed been excluded from UC Davis's medical school because of a racial quota. But a separate group of justices gave the university what it wanted: a ruling that race could be utilized as one factor among many to enhance diversity in an educational setting.

In the years that followed, lower courts continued to wrestle with these thorny issues. Everyone sensed that someday another case would follow. And, in fact, a quarter century after Bakke the Supreme Court did revisit the issue of race-based admissions policies in Grutter v. Bollinger (539 U.S. 306 (2003)) and Gratz v. Bollinger (539 U.S. 244 (2003)). The rulings in those cases generally tracked Justice Powell's vote in Bakke: The Court struck down the racial-preference admission program at the University of Michigan law school (Gratz), while upholding a more flexible program utilizing race as a factor in undergraduate admissions (Grutter).

Many things had changed in the country between the time of the Bakke decision and the arrival of Grutter and Gratz at the high court?witness Carter, Reagan, Bush, Clinton, and Bush II?but much stayed the same. In Bakke there were six separate opinions. Grutter and Gratz were no different, with six separate opinions in each case. Hey, if this were easy, we'd feed the data into a computer and get the answer in a nanosecond.

But it can't be done that way. It takes people thinking about complicated problems, and there are no clear answers as the country struggles to do the right thing by its people.

One aspect of race-based programs that has proved troubling is the question of duration. How long will we need to rely on race as a factor in school admissions? Justice Sandra Day O'Connor, who authored the lead opinion in the Grutter case six years ago, summarized the dilemma. "We take the law school at its word," she wrote, "that it would 'like nothing better than to find a race-neutral admissions formula' and will terminate its race-conscious admissions program as soon as practicable. ... It has been 25 years since Justice Powell [in Bakke] first approved the use of race to further an interest in student body diversity in the context of public higher education. Since that time, the number of minority applicants with high grades and test scores has indeed increased. ... We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." (Grutter, 539 U.S. at 343.)

Even with Barack Obama in the White House, I remain troubled by the wide disparity in income, mortality, educational opportunity, neighborhood quality, and, in general, the quality of life between various ethnic communities. In San Francisco all you have to do is drive from Hunters Point to Pacific Heights to know what I'm talking about. I have thought through these issues for more than 30 years, and I still struggle with them every day. It's one thing to talk about a system where "all men are created equal" and quite another to see gross inequality on the street every single day.

The same questions we asked in Bakke are still with us: Who decides which racial groups are to be given preference? How do we define who fits into each racial category? Does everyone in each racial category get the same amount of preference? How long does the preference last? And who decides when to end it, and by what authority or criteria?

Of course, I am not the only one who has pondered these issues. I suspect we all have, in one way or another. But to overcome our troubled past, we must do more than acknowledge our history. We must do something to change our future. And the key to change?lasting change?lies not in speeches, statutes, edicts, or local ordinances. It does not even lie in court decisions. It lies in personal and business relationships that reach across racial lines. Those relationships provide the mortar that secures the building blocks of a just society. But those relationships will not materialize out of thin air. It takes individual initiative from each of us to make it happen.

By creating and working to foster interracial relationships, we will hasten the day when race truly won't matter. And when that happens, we won't be reading or writing any more about upcoming lawsuits over special-admissions programs.

Bo Links practices civil law with Slote & Links in San Francisco. He is also a mediator and arbitrator, and the legal editor at California Lawyer.

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