Knowledge And Decisions

In a five to four decision, with fragmented partial concurrences and partial dissents, the Supreme Court ruled in the Bakke case (1978) that a university cannot establish minority admissions quotas which have the effect of “insulating each category of applicants... from competition with all other applicants.”⁹⁰ It did not categorically forbid the voluntary use of race as a consideration, where this “does not insulate the individual from comparison with all other candidates,”⁹⁴ but emphasized that any uses of racial designations by the state were “inherently suspect and thus call for the most exacting judicial examination” under the Fourteenth Amendment.⁹¹ The Supreme Court rejected the idea of group compensation for generalized “societal” wrongs — as distinguished from demonstrated discrimination by a given decision-making unit.⁹² It pointed out that the Fourteenth Amendment grants “equal rights” to individuals — not group rights, and certainly not special rights to one group historically connected with the origin of the Amendment.⁹³ After more than a century of litigation under the Fourteenth Amendment, it is “far too late to argue that the guarantee of equal protection to all persons permits the recognition of special wards entitled to a degree of protection greater than that accorded others.”⁹⁴ In a multi-ethnic society like the United States, the courts cannot assume the task of evaluating the historic “prejudice and consequent harm suffered by various minority groups.”⁹⁵ Indeed, the very concepts “majority” and “minority” were challenged, since “the white ‘majority’ itself is composed of various ethnic groups, most of which can lay claim to a history of previous discrimination at the hands of the state and private individuals.”⁹⁶ Any group rankings by harm suffered and remedies available would be transient, requiring repeated incremental adjustment as the judical remedies take effect, and the “variable sociological and political analysis” necessary for this “simply does not lie within the judicial competence” — even if it were otherwise politically feasible and socially desirable.⁹⁷

While the above-cited court’s decision written by Justice Lewis F. Powell directly addressed most of the major issues raised by “affirmative action” policies, the closeness of the vote and the partial concurrences that created different sets of majorities for different sections of the decision make the Bakke case less of a precedential landmark than it might be otherwise. That highly diverse and opposing groups greeted the decision as a victory for their particular viewpoints is further evidence of this. Moreover, the four justices who concurred with Powell in striking down the special minority admissions program refused to concur in anything else in his official opinion for the court,⁹⁸ and observed that “only a majority can speak for the court or determine what is the ‘central meaning’ of any judgment of the court.⁹⁹ The narrowly limited basis of the concurrence prevented any majority from existing over the range of issues addressed by Powell. The future legal implications of the Bakke decision were further clouded by the four dissenters, who tellingly pointed out how far the Supreme Court had already gone in the direction it was now rejecting.¹⁰⁰ The narrowness and tenuousness of the decision in the Bakke case was underscored by an opposite decision in the Weber case just one year later.

After striking down admissions quotas at the University of California, the U.S. Supreme Court upheld job training quotas at a Kaiser Corporation plant in Louisiana. Following criticism of their employment patterns by the Office of Federal Contract Compliance, threatening loss of government contracts, Kaiser and the United Steelworkers Union jointly prepared an “affirmative action” plan modeled after a plan imposed on the steel industry by the government in a consent decree. Half of all places in the training program were reserved for blacks. One of the white workers excluded from the training program in favor of blacks with less seniority was Brian F. Weber, who instituted a lawsuit charging discrimination. Weber won in the trial court and in the Court of Appeals, but lost on a five-to-two decision by the Supreme Court. The four dissenting Justices in the Bakke case (Brennan, Marshall, White, and Blackmun) were joined by Justice Potter Stewart to form the new majority in the Weber case.

In Weber as in Bakke, the majority decision was based on the relevant statutory law — the Civil Rights Act of 1964 — rather than on the Constitution. This meant that both cases avoided the establishment of a broad legal principle. Both cases also construed the applicability of even the statutory law very narrowly. In Bakke, the four concurring Justices declared: