Academic journal article Texas Review of Law & Politics

The Supreme Court's Perversion of Equality

Academic journal article Texas Review of Law & Politics

The Supreme Court's Perversion of Equality

Article excerpt


"'With five votes around here you can do anything,' [Justice] Brennan would tell his clerks."1

Throughout recorded history and probably from time immemorial, coundess people have sought equality of treatment under custom and law.2 In the continuing quest to narrow the gap between this ideal and reality, great struggles and noble sacrifices have occurred, and they continue today throughout the world. In our country, especially since Brown v. Board of Education, the Supreme Court's role in advancing legal equality in general, and racial equality in particular, has been monumental.

Yet beginning with the Bakke decision4 (race could be used in college admissions), and especially with the subsequent decisions of Weber (upheld a racial employment quota) , Fullilove (upheld Federal government contract set-asides for minorities) , and Johnson (upheld employment preference for women) - the Court majority radically reversed course by establishing a new legal doctrine of group rights, and by giving constitutional and statutory sanction for preferences based on race, color, ethnicity, national origin, and sex. Thus it proclaimed in substance: "Tell us your ancestry, tell us your sex, and we will tell you your rights."

Varied policies carry the affirmative action label, some entirely consistent with non-discrimination, but preferential affirmative action is at the center of the continuing and escalating national debate. A fundamental assumption supporting preferences is that equality and justice for women and some racial minorities cannot be achieved merely by legal equality for all persons, but only by preferential treatment for some. Preferential treatment is thus recognized as legally justified. But judged on the facts and the standards of logic and law, is the legal foundation for these preferences valid? Because the core legal foundation for preferences rests on the Bakke, Weber, and Johnson decisions, they hold the answer to tins question.

The Court's radical changes beginning with Bakke are especially striking. Abandoned were the pre-Bakke standards: (1) a remedy for discrimination was permitted only for identifiable victims of proven discrimination, and (2) all racial discrimination was unlawful. In the McDonald decision, the Court unanimously held that Title VII of the Civil Rights Act of 1964 proscribes racial discrimination in private employment against whites on the same terms and conditions as racial discrimination against nonwhites,8 and that it "prohibits all racial discrimination in employment, without exception for any group of particular employees ... ."9 In Griggs v. Duke Power Co., the Court stated that Tide VII provides that " [d] iscriminatory preference for any group, minority or majority, is precisely and only what Congress has proscribed."10

As articulated in a legal maxim, the meaning of words is the soul of the law." On the affirmative action issue, such is especially true for the centerpiece word, "discriminate." Therefore, here is its applicable dictionary definition: "1. to make a distinction in favor of or against a person or thing on the basis of the group, class, or category to which the person or thing belongs, rather than according to actual merit."12


The University of California, Davis Medical School's admissions policy racially and ethnically discriminated, i.e., race and ethnicity were included as qualifications. Sixteen percent (16 of 100 slots)14 of the first year admissions were reserved to a special admissions program for certain racial and ethnic minorities - "Blacks", "Chicanos", "Asians", and "American Indians."15 This was not a remedy for the University's past discrimination since none existed.16

Applications by Bakke, a white male, were rejected in 1973 and 1974. His qualifications were superior to some, if not all of the minority special admittees. …

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