THE LAST WORD: The Pragmatism of Bakke

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THE LAST WORD: The Pragmatism of Bakke

This month's twentieth anniversary of the Supreme Court decision in Bakke v. University of California is an odd occasion to commemorate. The Bakke case is the earliest in which the Supreme Court directly addressed affirmative action. But like much of the affirmative action debate, Bakke is as symbolic as it is real. Appropriately, given its resolution at the time, the Bakke case presents multiple meanings today.

Retrospectively, Bakke may represent the beginning of the end for the civil rights movement because the Supreme Court signaled, at best, a begrudging acceptance of remedies for racial discrimination that themselves took race into account. Prospectively, Bakke offers an opportunity to confront the challenges of achieving racial justice through pragmatic traditions.

The Court was highly divided over Bakke. It was faced with the claim of so-called "reverse discrimination" brought by Allan Bakke, a White, male, thirty-seven-year-old professional engineer whose application to the University of California-Davis medical school had been turned down twice. The school had implemented an affirmative action program only shortly before Bakke challenged it. He alleged he was excluded due to affirmative action for people of color.

Four justices led by Justices William Brennan and Thurgood Marshall voted to approve affirmative action principles as constitutional.

Justice Brennan stated that the medical school "had a sound basis for believing that the problem of underrepresentation of minorities was substantial and chronic and that the problem was attributable to handicaps imposed by past and present racial discrimination.... The practice of medicine in this country was largely the prerogative of [W]hites."

Marshall said, "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."

Another four justices voted to strike down the specific affirmative action plan as unconstitutional. They reserved judgment on other plans, but their disapproval was apparent. Justice William Rehnquist, for example, would later vote consistently against affirmative action.

The opinion by Justice Lewis Powell offered a balance between these two groups. …