Tuesday, May 12, 2020

An Interesting Historical Note About the Bakke Case

By David Bernstein - May 12, 2020 at 08:47PM

Regents of the University of California v. Bakke was the Supreme Court's first major opinion on the constitutionality of government affirmative action preferences. I am (barely) old enough to have read about the controversy contemporaneously (as I had a subscription to the New York Times for five cents a day in sixth grade through my elementary school (!)), and of course have read about it often since. Both at the time and beyond, the case has been portrayed as pitting racial preferences for African Americans against the rights of white students like Bakke, who insisted on race neutrality.

Justice Thurgood Marshall's emphatic dissent helped crystallize the black-white prism through which the case is viewed. His opinion begins, "I do not agree that petitioner's admissions program violates the Constitution. For 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."

The strange thing about this framing of the case is that African Americans not only weren't the only beneficiaries of the minority quota that University of Davis Medical School established, they weren't even the primary beneficiaries. As Justice Powell explained, in 1971 Davis increased the medical school class size from 50 to 100, and "from 1971—through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, and 37 Asians, for a total of 44 minority students."

Two things are notable about these statistics. First, almost 50% more Mexican-Americans than African Americans were admitted under the affirmative action/quota program.

Second, out of 400 students in four years, under regular admissions 37 Asians were admitted, or almost 10% of the class. At the time, Asian Americans were about 2.5% of California's population. Despite Asians being present well above their demographic numbers in the class via regular admissions, 12 additional Asians were admitted under the minority quota. Regardless of whether one's rationale for affirmative action is "diversity" (as Justice Powell pioneered in his Bakke concurrence) or recompense for exclusion from educational opportunities due to historical and current discrimination, it's hard to see the legal rationale for "Asian preferences" given their strong representation among the student body without such preferences.

In the Court's various opinions, meanwhile, the words "Negro" or "Negroes" appear dozens of times; Asians and Mexicans are barely mentioned. Justice Powell's opinion does have a footnote addressing the Asian anomaly: "The University is unable to explain its selection of only the four favored groups—Negroes, Mexican-Americans, American-Indians, and Asians—for preferential treatment. The inclusion of the last group is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process." But that's about it.

It's rather curious that both the Court and public discussion focused on the black-white dynamic, given that twice as many Mexican and Asian Americans were admitted under the minority quota as African American. But it seems that Bakke set a pattern for future discussions of affirmative action. Today, African Americans are a shrinking minority of those eligible for most affirmative action programs. If one adds together the population of Hispanics, Asian-Americans (who are eligible for government contracting and other preferences, but not university admissions preferences), and Native Americans, they outnumber African Americans by over 2-1. But we still debate racial and ethnic preferences as if the vast majority of beneficiaries are African Americans. (And, I should add, those who implement affirmative action programs still are unable to explain why they use the favored groups, e.g., why white Argentines get preferences but dark-skinned Yemenis do not, or why people from India are lumped in the same category with people from Malaysia).

Anyway, I wonder how the litigation would have gone if Bakke's attorneys had argued that affirmative action preferences, even quotas, were lawful given the special history of African Americans, but that Davis' program was unconstitutional because it extended the same benefits to other groups that did not have a 400 year history of slavery and Jim Crow.


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