Bakke v. University of California …
Appeal: 1978

Appellee: Allan Bakke
Appellant: The Medical School of the University of California
Appellee Claim: That the California Supreme Court erred in ruling that the school's special-admissions program for minorities violated Bakke's civil rights as a white male when he was denied admission
Chief Lawyer for Appellee: Reynold H. Colvin
Chief Lawyers for Appellant Archibald Cox, Paul J. Mishkin, Jack B. Owens, and Donald L. Reidhaar
Justices: Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger, Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, John Paul Stevens, Potter Stewart, and Byron R. White
Place: Washington, D.C.
Date of Decision: June 28, 1978
Decision: That the school's special-admissions program was unconstitutional

SIGNIFICANCE: For the first time, the Supreme Court said there could be such a thing as reverse discrimination.

The University of California operates several campuses throughout the state, and it is one of the largest state-sponsored higher education systems. At the university's campus in Davis, California, a medical school was established in 1968 with an entering class of 50 students. Three years later, the entering class size was doubled to 100 students. Originally, there was no preferential admissions policy for minorities. From 1968 to 1970, the school implemented a special-admissions program to increase minority representation in each entering class.

The special admissions program worked separately from the regular admissions program. Sixteen percent of the entering class was reserved for minorities, and minority applicants were processed and interviewed separately from regular applicants. The grade point averages and standardized test score averages for special-admissions entrants were significantly lower than for regular-admissions entrants.

In 1973, a Caucasian male named Allan Bakke applied to the Davis Medical School. Although Bakke got a combined score of 468 out of a possible 500 from his interviewers, his application was rejected. There were 2,464 applications for the 100 positions in the 1973 entering class, and by the time Bakke's application came up for consideration the school was only taking applicants with scores of 470 or better. Four special-admissions seats were left unfilled, however, and Bakke wrote a bitter letter to Dr. George H. Lowrey, associate dean and chairman of the Admissions Committee, complaining about the injustice of the special-admissions process.

Bakke applied again in 1974. That year there was even more competition for the 100 entering class positions: the school received 3,737 applications. Lowrey was one of Bakke's interviewers and gave him a low score, which contributed to Bakke's being rejected once again. Furious, Bakke sued the University of California in the Superior Court of California.

Bakke alleged that the Medical School's special admissions program acted to exclude him on the basis of his race and violated his rights under the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, the California state constitution, and civil rights legislation. The trial court agreed but refused to order the school to admit Bakke as a student. Bakke appealed to the California Supreme Court, which confirmed the trial court's decision that the school's admissions programs were unconstitutional and also ordered the school to admit Bakke.

Reverse Discrimination Claimed

The School appealed to the U.S. Supreme Court. Its attorneys were Archibald Cox, Paul J. Mishkin, Jack B. Owens and Donald L. Reidhaar, and Bakke's chief attorney was Reynold H. Colvin. The parties argued their case before the Supreme Court on October 12, 1977. Bakke's attorney, Colvin, was making his first Supreme Court appearance, and he faced several experienced attorneys. For example, Cox was a former Harvard Law School professor and had served as Watergate Special Prosecutor. Colvin found himself immersed in an argument with Justice Thurgood Marshall, the only African-American on the court, over whether minorities should be accorded any preference in the school's admissions process:

Marshall: You are arguing about keeping somebody out and the other side is arguing about getting somebody in.

Colvin: That's right.

Marshall: So it depends on which way you look at it doesn't it? …

Colvin: If I may finish …

Marshall: You are talking about your client's rights. Don't these underprivileged people have some rights?

Colvin: They certainly have the right to …

Marshall: To eat cake.

On June 28, 1978, Justice Lewis F. Powell, Jr., announced the decision of the majority in the 5-4 decision. It held that the school's special-admissions policy constituted reverse discrimination and was thus illegal. The court upheld the decision of the California Supreme Court, and affirmed the California court's order that Bakke be admitted to the school. Further, the Court upheld the California court's determination that the school's special-admissions program had to be scrapped. However, the Court held that schools could continue to give preference to minorities, so long as they didn't exclude whites from a specific portion of the entering class, like the school had. The Court cited Harvard University's program as a model for an acceptable admissions policy that gave consideration to racial status without violating the civil rights of whites such as Bakke:

The experience of other university admissions programs, which take race into account in achieving the educational diversity valued by the First Amendment, demonstrates that the assignment of a fixed number of places to a minority group is not a necessary means toward that end. An illuminating example is found in the Harvard College program.… When the [Harvard] Committee on Admissions reviews the large middle group of applicants who are admissible and deemed capable of doing good work in their courses, the race of an applicant may tip the balance in his favor just as geographic origin or a life spent on a farm may tip the balance in other candidates' cases. A farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer. Similarly, a black student can usually bring something that a white person cannot offer.

In Harvard college admissions the Committee has not set target quotas for the number of blacks, or of musicians, football players, physicists or Californians to be admitted in a given year.

In a nutshell, the Court had ruled that while schools could give minority applicants some extra preference and consideration, they couldn't set aside a quota of positions for minority students that excluded whites. Such a program, like that at the Davis Medical School, constituted reverse discrimination. Bakke had won his case and would be admitted as a student. It was the first time that the Supreme Court applied civil rights protection to white students seeking admission to a university.

—Stephen G. Christianson

Suggestions for Further Reading

Ball, Howard. The Bakke Case: Race, Education, and Affirmative Action. University of Kansas Press, 2000.

"Five Cases That Changed American Society." Scholastic Update (November 30, 1984): 19-20.

"Minorities Down at Davis Univ. Since Bakke Case." Jet (June 7, 1982): 8.

Mooney, Christopher F. Inequality and the American Conscience. Justice Through the Judicial System. New York: Paulist Press, 1982.

O'Neill, Timothy J. Bakke & the Politics of Equality: Friends and Foes in the Classroom of Litigation. Middletown, Conn.: Wesleyan University Press, 1985.

Schwartz, Bernard. Behind Bakke: Affirmative Action and the Supreme Court. New York: New York University Press, 1988.