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Regents of the University of California v. Bakke 1978

Regents of the University of California v. Bakke 1978

Petitioner: The University of California at Davis Medical School

Petitioner's Claim: That the University of California Medical School's special admission affirmative action program violated Bakke's civil rights when he was denied admission.

Chief Lawyer for Petitioner: Archibald Cox, Paul J. Mishkin, Jack B. Owens, Donald L. Reidhaar

Chief Lawyer for Respondent: Reynold H. Colvin

Justices for the Court: Chief Justice Warren Burger, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens, Potter Stewart

Justices Dissenting: Harry A. Blackmun, William J. Brennan, Jr., Thurgood Marshall, Byron R. White

Date of Decision: June 28, 1978

Decision: Ruled in favor of Bakke by finding the school's special admissions program unconstitutional because of its use of quotas and that Bakke should be admitted.

Significance: The Court ruled that race could be one factor among several considered for admissions, but it could not be the only factor considered. Since race could be considered, the ruling was the first court approval of affirmative action.

On October 12, 1977 a long line wound its way up the marble staircase and between the towering columns of the U.S. Supreme Court building. Some had camped out all night to get a chance to hear the case to be argued that day, Regents of the University of California v. Allan Bakke, the first affirmative action case to reach the Supreme Court.

The courtroom was packed, yet most of the audience had obtained tickets through their connections to the court or through the parties to the case. Despite their special interest in the case, only a small number of people of color or women could be spotted in the select gathering. This alone was testimony (evidence) to the many years of gender (sex) exclusion in professional circles.

Demonstrators who marched in the streets that day were of a decidedly different makeup. Men and women of all colors marched not only outside the Court but from New York to Berkeley, California, raising banners and chanting slogans such as "We won't go back. We won't go back!" The crowds put the Court and world on notice that whatever the outcome in the case, the struggle to open the doors of universities to minorities would go on, never to return to the days when the same demonstrators' grandparents and parents could not gain admission. However, not all Americans supported these demonstrators. Many were opposed to giving increased opportunity at the expense of others through affirmative action programs.

What's All the Fuss About?

Affirmative action means making a special effort to provide opportunities in education and businesses for members of groups (people of color and women) that had been discriminated (giving privileges to one group but not to another) against in the past. In the mid-1970s, educational affirmative action programs often used "quotas." Quotas meant setting a goal that a certain number of minority students would be admitted.

The medical school at the Davis campus of the University of California had such a program in 1970. The program called for a quota of sixteen out of one hundred openings to be filled by disadvantaged students from minority groups. The medical school viewed minority groups as "Blacks," "Chicanos," "Asians," and "American Indians." Under special admission procedures, the minority applicants were evaluated by placing less focus on test scores and grade point average and more on the applicant's overall life and qualifications. The medical school did not rate or compare special applicants against students applying under regular admission requirements, but recommended special applicants for admission until the sixteen places were filled. This enabled sixteen minority students to join Davis' freshman class of one hundred students.

Allan Bakke

Allan Bakke, a white, thirty-seven year old engineer, wanted to be a medical doctor. He applied in 1973 and again in 1974 through the regular admission process to the University of California at Davis Medical School. Although each year he appeared more qualified than several students admitted through the affirmative action special admissions program, Bakke was rejected both years. As a result, Bakke sued for admission to the Davis medical school. He claimed the medical school's special admission policy denied admission to him solely on the basis of his race thus violating his rights under the Equal Protection Clause of the Fourteenth Amendment. The trial court agreed with Bakke and ruled the special admissions procedure unconstitutional (not following the intent of the U.S. Constitution). Yet, the court refused to order the school to admit Bakke. In 1976, the California Supreme Court agreed with the trial court's judgement, but also ordered the school to admit Bakke. The university appealed to the U.S. Supreme Court which agreed to hear the case.

The Arguments

As demonstrators chanted outside, Archibald Cox for the university and Reynold Colvin, Bakke's lawyer, argued the case. Cox, a Harvard law professor who had appeared before the Court many times, defended the university's affirmative action special admissions program. He claimed it was a fair and constitutional way of making up for past discrimination against minority groups. The program gave new opportunity to members of groups which had not had these opportunities in the past.

Colvin, in his first Supreme Court appearance, made several claims against the university. He argued that the admission policy was in conflict with Title VI of the Civil Rights Act of 1964. Title VI prohibits discrimination based on race, color, or national origin in programs which receive federal funds. All state university programs, including the Davis medical school, receive such funds. Furthermore, Colvin argued if Title VI was violated, then the Equal Protection Clause of the Fourteenth Amendment guaranteeing "equal protection of the laws" was also violated. Therefore, the special admission policy was unconstitutional. Continuing in Bakke's defense, Colvin suggested the program went too far in offering increased opportunities for minority groups and seemed to be "reverse discrimination." Reverse discrimination is the lessening of opportunity for a group of people not traditionally discriminated against such as white males.

Two Majority Opinions

More than eight months would pass before the Supreme Court delivered its decision. The Court was as sharply divided over the affirmative action issue as the nation was. Two majority opinions were presented. Each of the opinions was agreed to by a different grouping of five justices. Justice Lewis F. Powell was key to the Bakke decision being the only justice in both majorities.

The two 5–4 majority opinions delivered by Justice Powell were:

  1. The special admissions program with a fixed quota or number of places available only to minorities violated Title VI of the Civil Rights Act of 1964. Those places were denied to white applicants based only on their race. The university's policy was struck down and the university was ordered to admit Bakke.
  2. Admissions programs do not violate the Equal Protection Clause of the Fourteenth Amendment if they consider race as one of several factors used to decide admission. Therefore, race may be considered but it may not be the only factor considered.

Developing the Two Opinions

The two majority opinions developed in the following manner. In the first opinion four justices (John Paul Stevens, Warren Burger, Potter Stewart, and William Rehnquist) avoided completely the constitutional issue of Equal Protection and instead said it was "crystal clear" that the quota system violated Title VI of the Civil Rights Act. These four also agreed race could never be a factor in admissions. Although he reasoned differently, Justice Powell agreed the quota system violated Title VI. His agreement with the Title VI part added up to a five-justice majority, making quota systems illegal. However, he did not agree race could never be used in admission programs.

In the second opinion four different justices (William J. Brennan, Thurgood Marshall, Byron White, and Harry Blackmun) pointed out that "race conscious programs" do not violate the Equal Protection Clause as long as race was only one factor among many factors considered for admission to a program. Powell agreed, and his agreement made a five-justice majority on that point.

Allan Bakke was admitted to the medical school at the University of California Davis. He graduated in 1982.

Justice Marshall's Dissent

Justice Marshall, the first African American to serve on the Supreme Court and a strong supporter of affirmative action programs, commented in one of his most famous dissents,

The position of the Negro today in America is the tragic but inevitable (unavoidable) consequence of centuries of unequal treatment. Measured by any benchmark of comfort or achievement, meaningful equality remains a distant dream for the Negro. . . Now, we have the Court again stepping in, this time to stop affirmative action programs of the type [quota system] used by the University of California.


A ppointed by President Richard M. Nixon, Lewis Franklin Powell, Jr., served as an associate justice of the U.S. Supreme Court from 1972 until his retirement in 1987. Born into a distinguished Virginia family whose first American ancestor was an original settler of the Jamestown colony in 1607, Powell received his law degree from Washington and Lee University and his masters in law at Harvard in 1932. Powell became one of Virginia's most respected and honored lawyers as well as a strong community leader. While serving on the Richmond School Board and the Virginia State Board of Education, he oversaw the peaceful integration of the state's public schools in the late 1950s.

As an admired Supreme Court member, Powell generally held conservative views but was comfortable taking a middle stand. He often cast a deciding vote, or "swing vote," in cases where justices' opinions were split. Balancing the rights of a society against rights of individuals, Powell frequently cast decisive pro-civil rights votes. His most famous decisive vote came in Regents of the University of California v. Bakke (1978) where he prohibited quota systems in university admission policies but upheld the principle of "affirmative action."


Based on the ruling, quota systems used in affirmative action programs were out but race could be considered if other factors were also considered. This concession that race could be used as a factor was at least a partial victory for affirmative action and demonstrators who had filled the streets. As is often the case, the divided or split decision seemed to allow more room for differing applications across the country. For example, universities with strong affirmative action programs used the part that the race factor could continue to help them build strong multiracial communities. On the other hand, schools that had always been reluctant in racially integrating their campuses used the decision to abandon attempts at affirmative action.

Affirmative action continued to be a controversial topic in the 1990s. In 1995 demonstrators in California again took to the streets in support of affirmative action programs at the state universities. President Bill Clinton made his famous speech on affirmative action in July of 1995 saying to "mend it, but don't end it." However, in 1996 Californians voted to ban existing state government affirmative action programs. The issue remains controversial and complex.

Suggestions for further reading

Dreyfuss, Joel, and Charles Lawrence III. The Bakke Case: The Politics of Inequality. New York: Harcourt, Brace, Jovanovich, 1979.

Lawrence, Charles R., III, and Mari J. Matsuda. We Won't Go Back: Making the Case for Affirmative Action. Boston: Houghton Mifflin Company, 1997.

Welch, Susan, and John Gruhl. Affirmative Action and Minority Enrollments in Medical and Law Schools. Ann Arbor: University of Michigan Press, 1998.

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