Regents of the University of California v.

Bakke
Regents of the University of California v. Bakke, 438 1 Background
U.S. 265 (1978) was a landmark decision by the Supreme
Court of the United States. It upheld armative action,
allowing race to be one of several factors in college ad- 1.1 State of the law
mission policy. However, the court ruled that specic
quotas, such as the 16 out of 100 seats set aside for minor- Further information: African-American Civil Rights
ity students by the University of California, Davis School Movement (195468)
of Medicine, were impermissible.
Although the Supreme Court had outlawed segregation In Brown v. Board of Education (1954), the Supreme
in schools, and had even ordered school districts to take Court of the United States ruled segregation by race in
steps to assure integration, the question of the legality of public schools to be unconstitutional. In the following
voluntary armative action programs initiated by univer- fteen years, the court issued landmark rulings in cases
sities was unresolved. Proponents deemed such programs involving race and civil liberties, but left supervision of
necessary to make up for past discrimination, while op- the desegregation of Southern schools mostly to lower
[1]
ponents believed they were illegal and a violation of the courts. Among other progressive legislation, Congress
[2]
Equal Protection Clause of the Fourteenth Amendment passed the Civil Rights Act of 1964, Title VI of which
to the United States Constitution. An earlier case that forbids racial discrimination in any program or activity
[3]
the Supreme Court had taken in an attempt to address receiving federal funding. By 1968, integration of pubthe issue, DeFunis v. Odegaard (1974), was dismissed on lic schools was well advanced. In that year, the Supreme
Court revisited the issue of school desegregation in Green
procedural grounds.
v. County School Board, ruling that it was not enough to
Allan P. Bakke, an engineer and former Marine ocer, eliminate racially discriminatory practices; state governsought admission to medical school, but was rejected for ments were under an obligation to actively work to deadmission by several, in part because, in his early thirties, segregate schools.[4][5] The school board in Green had
he was considered too old. After twice being rejected by allowed children to attend any school, but few chose to
U.C.-Davis, he brought suit in state court. The California attend those dominated by another race.[6] In 1970, in
Supreme Court struck down the program as violative of Swann v. Charlotte-Mecklenburg Board of Education, the
the rights of white applicants and ordered Bakke admit- Supreme Court upheld an order for busing of students to
ted. The U.S. Supreme Court accepted the case amid desegregate a school system.[4][7]
wide public attention.
Although public universities were integrated by court deThe case fractured the court; the nine justices issued a to- cree, selective colleges and graduate programs, and the
tal of six opinions. The judgment of the court was writ- professions which stemmed from them, remained almost
ten by Justice Lewis Powell; two dierent blocs of four all white. Many African-Americans had attended inferior
justices joined various parts of Powells opinion. Find- schools and were ill-prepared to compete in the admising diversity in the classroom to be a compelling state sions process. This was unsatisfactory to many activists
interest, Powell opined that armative action in general of the late 1960s, who protested that given the Africanwas allowed under the Constitution and the Civil Rights Americans history of discrimination and poverty, some
Act of 1964. Nevertheless, U.C.-Daviss program went preference should be given to minorities. This became
too far for a majority of justices, and it was struck down a commonly held liberal position, and large numbers of
and Bakke admitted. The practical eect of Bakke was public and private universities began armative action
that most armative action programs continued without programs.[8] Among these were the University of Califorchange. Questions about whether the Bakke case was nia, Davis School of Medicine (U.C.-Davis or the unimerely a plurality opinion or binding precedent were an- versity), which was founded in 1968 and had an all-white
swered in 2003 when the court upheld Powells position inaugural class. The faculty was concerned by this, and
in a majority opinion in Grutter v. Bollinger.
the school began a special admissions program to compensate victims of unjust societal discrimination.[9][10]
The application form contained a question asking if the
student wished to be considered disadvantaged, and, if
1

2
so, these candidates were screened by a special committee, on which more than half the members were from minority groups.[11] Initially, the entering class was 50 students, and eight seats were put aside for minorities; when
the class size doubled in 1971, there were 16 seats which
were to be lled by candidates recommended by the special committee.[12] While nominally open to whites, no
one of that race was admitted under the program, which
was unusual in that a specic number of seats were to be
lled by candidates through this program.[9]

BACKGROUND

it was above their limit.[19] Medical schools at the time

openly practiced age discrimination.[20]

Bakke applied late to U.C.-Davis in 1973 because his

mother-in-law was ill.[21][22] This delay may well have
cost him admission: although his credentials were outstanding even among applicants not part of the special
program, by the time his candidacy was considered under
the schools rolling admissions process, there were few
seats left.[23] His application reected his anxiety about
his age, referring to his years of sacrice for his country
The rst case taken by the Supreme Court on the subject as a cause of his interest in medicine.[19]
of the constitutionality of armative action in higher ed- Bakke received 468 points out of a possible 500 on the
ucation was DeFunis v. Odegaard (1974).[13][14] Marco admissions committees rating scale in 1973. Earlier
DeFunis, a white man, had twice been denied admis- in the year, a rating of 470 had won automatic admission to the University of Washington School of Law. The sion with some promising applicants being admitted with
law school maintained an armative action program, and lower scores. Bakke had a science GPA of 3.44 and
DeFunis had been given a higher rating by admissions of- an overall GPA of 3.46 after taking science courses at
ce sta than some admitted minority candidates. The night to qualify for medical school. On the Medical ColWashington state trial court ordered DeFunis admitted, lege Admissions Test (MCAT), Bakke scored in the 97th
and he attended law school while the case was pend- percentile in scientic knowledge, the 96th percentile in
ing. The Washington Supreme Court reversed the trial verbal ability, the 94th percentile in quantitative analycourt, but the order was stayed, and DeFunis remained in sis, and the 72nd percentile in general knowledge.[18][24]
school. The U.S. Supreme Court granted review and the Bakkes MCAT score overall was 72; the average applicase was briefed and argued, but by then, DeFunis was cant to U.C.-Davis scored a 69 and the average appliwithin months of graduation. The law school stated in its cant under the special program a 33.[25] In March 1973,
briefs that even if it won, it would not dismiss him.[13][15] Bakke was invited to U.C.-Davis for an interview. Dr.
After further brieng on the question of mootness, the Theodore West, who met with him, described Bakke as a
Supreme Court dismissed the case, 5-4, holding that as well-qualied candidate for admission whose main hardDeFunis had almost completed his studies, there was ship is the unavoidable fact that he is now 33. On
no longer a case or controversy to decide.[13][16] Justice
the grounds of motivation, academic records, potential
William Brennan, in an opinion joined by the other three promise, endorsement by persons capable of reasonable
members of the minority, accused the court of sidestepjudgments, personal appearance and decorum, maturity,
ping the issues, which must inevitably return to the fed- and probable contribution to balance in the class, I beeral courts and ultimately again to this court.[13][17]
lieve Mr. Bakke must be considered as a very desirable
applicant and I shall so recommend him.[24][26] About
two months later in May 1973, Bakke received notice of
1.2 Allan Bakke
his rejection.[18][19]
Allan P. Bakke, a 35-year-old white male, applied to
twelve medical schools in 1973. He had been a National Merit Scholar at Coral Gables Senior High School,
a school in Florida. He was accepted as an undergraduate at the University of Minnesota, deferring tuition
costs by joining Naval ROTC. He graduated with a GPA
of 3.51. In order to fulll his ROTC requirements, he
joined the Marine Corps and served four years, including
a seven-month tour of duty in Vietnam as a commanding ocer of an anti-aircraft battery. In 1967, having
achieved the rank of captain, he was granted an honorable discharge.[18] Bakke then worked as an engineer at
NASA. He stated that his interest in medicine started in
Vietnam, and increased at NASA, as he had to consider
the problems of space ight and the human body there.
But twelve medical schools rejected his application for
admission.[19]

Bakke complained to Dr. George Lowrey, chairman of

the admissions committee at the medical school, about
the special admissions program. At Lowreys request,
Assistant Dean Peter Storandt told Bakke his candidacy
had come close and encouraged him to reapply. If he
was not accepted the second time, he could then research the legal question. He had been a good candidate. I thought hed be accepted and that would end the
matter.[27] Storandt also gave Bakke the names of two
lawyers interested in the issue of armative action.[18]
The general counsel for the University of California said,
I dont think Storandt meant to injure the university.
Its simply an example of a non-lawyer advising on legal matters.[27] Storandt stated, I simply gave Allan the
response youd give an irate customer, to try and cool his
anger. I realized the university might be vulnerable to legal attack because of its quota, and I had the feeling by
school, but
Bakke had applied rst to the University of Southern Cal- then that somebody somewhere would sue the[27]
Storandt
I
surely
didnt
know
this
would
be
the
case.
ifornia and Northwestern in 1972, and both rejected him,
was
demoted
and
later
left
the
university.
According
making a point of his age, with Northwestern writing that

3
to Bernard Schwartz in his account of the Bakke case,
Storandt was red.[27][28]
Allan Bakke applied to U.C.-Davis medical school again
in 1974.[19] He was interviewed twice: once by a student interviewer, who recommended his admission, and
once by Dr. Lowrey, who in his report stated that Bakke
had very denite opinions which were based more on
his personal viewpoints than on a study of the whole
problem He was very unsympathetic to the concept
of recruiting minority students.[29] Lowrey gave Bakke
a poor evaluation, the only part of his application on
which he did not have a high score.[30] He was rejected
again, although minorities were admitted in both years
with signicantly lower academic scores through the special program. Not all minority applicants whose admission was recommended under the program gained
entrysome were rejected by the admissions committee. This, however, did not aect the number of minority students to be admitted, sixteen.[19][31] Although
272 caucasians between 1971 and 1974 had applied under this program, none had been successful;[18] in 1974
the special admissions committee summarily rejected all
white students who asked for admission under the program. Only one black student and six Latinos were admitted under the regular admissions program in that time period, though signicant numbers of Asian students were
given entry.[32]
According to a 1976 Los Angeles Times article, the dean
of the medical school sometimes intervened on behalf of
daughters and sons of the universitys special friends
in order to improve their chances.[33] Among those who
benetted by Dean C. John Tuppers interventions (about
ve per year) was the son of an inuential state assemblyman, who had not even led an application. The special picks were ended by order of University of California President David S. Saxon in 1976. Bakkes lawyer
deemed it impossible to tell if these picks caused Bakke
not to be admitted, but according to an attorney who led
an amicus curiae brief on behalf of the National Urban
League in support of armative action, the practice of
deans picks made the university reluctant to go into detail about its admission practices at trial, aecting its case
negatively.[34]

1.3

Lower court history

On June 20, 1974,[35] following his second rejection from

U.C.-Davis, Bakke brought suit against the university in
the Superior Court of California,[31] Yolo County. He
sought an order admitting him on the ground that the special admission programs for minorities violated the U.S.
and California constitutions, and Title VI of the Civil
Rights Act. U.C.-Daviss counsel led a request that the
judge, F. Leslie Manker, nd that the special program
was constitutional and legal, and argued that Bakke would
not have been admitted even if there had been no seats
set aside for minorities. On November 20, 1974, Judge

The former Yolo County Courthouse in Woodland, California,

where the initial hearings in the Bakke case took place

Manker found the program unconstitutional and in violation of Title VI, no race or ethnic group should ever be
granted privileges or immunities not given to every other
race.[36] Manker ordered the medical school to disregard
race as a factor, and to reconsider Bakkes application
under a race-free system.[37] After Manker entered nal
judgment in the case on March 7, 1975,[35] both parties
appealed, the university on March 20 because the program was struck down, and Bakke on April 17 because
he was not ordered admitted.[35][37]
Because of the important issues presented, the Supreme
Court of California on June 26, 1975 ordered the appeal transferred to it, bypassing the intermediate appeals
court.[38][39] On March 19, 1976, the case was argued
before the state supreme court.[40] Nine amicus curiae
briefs were led by various organizations, the majority
in support of the universitys position.[41] The California
Supreme Court was considered one of the most liberal
appellate courts, and it was widely expected that it would
nd the program to be legal. Nevertheless, on September 16, 1976, the court, in an opinion by Justice Stanley
Mosk, upheld the lower-court ruling, 61.[35][41][42] Mosk
wrote that no applicant may be rejected because of his
race, in favor of another who is less qualied, as measured
by standards applied without regard to race.[43][44] Justice Matthew O. Tobriner dissented, stating that Mosks
suggestion that the state open more medical schools to accommodate both white and minority was unrealistic due
to cost: It is a cruel hoax to deny minorities participation in the medical profession on the basis of such fanciful
speculation.[45][46] The court barred the university from
using race in the admissions process and ordered it to provide evidence that Bakke would not have been admitted
under a race-neutral program. When the university conceded its inability to do so in a petition for rehearing, the
court on October 28, 1976 amended its ruling to order
Bakkes admission and denied the petition.[35][47][48]

2 U.S. Supreme Court consideration

2.1

Acceptance and briefs

Students protest at a meeting of the Regents of the University of

California, June 20, 1977

The university requested that the U.S. Supreme Court

stay the order requiring Bakkes admission pending its ling a petition asking for review. U.S. Supreme Court Justice William Rehnquist, as circuit justice for the Ninth
Circuit (which includes California) granted the stay for
the court in November 1976.[49][50]
The university led a petition for writ of certiorari in December 1976.[50] The papers of some of the justices who
participated in the Bakke case reveal that the case was
three times considered by the court in January and February 1977. Four votes were needed for the court to grant
certiorari, and it had at least that number each time, but
was twice put over for reconsideration at the request of
one of the justices. A number of civil rights organizations
led a joint brief as amicus curiae, urging the court to
deny review, on the grounds that the Bakke trial had failed
to fully develop the issuesthe university had not introduced evidence of past discrimination, or of bias in the
MCAT. Nevertheless, on February 22, the court granted
certiorari, with the case to be argued in its October 1977
term.[51][52]

U.S. SUPREME COURT CONSIDERATION

been rejected because he was unqualied.[54] Reynold

Colvin, for Bakke, argued that his clients rights under the
Fourteenth Amendment to equal protection of the laws
had been violated by the special admission program.[55]
Fifty-eight amicus curiae briefs were led, establishing
a record for the Supreme Court that would stand until
broken in the 1989 abortion case Webster v. Reproductive Health Services. Future justice Ruth Bader Ginsburg
signed the ACLU's brief; Marco deFunis, the petitioner
in the 1974 case dismissed for mootness, wrote the brief
for Young Americans for Freedom.[56]
In addition to the various other amici, the United States
led a brief through the Solicitor General, as it may without leave of court under the Supreme Courts rules. When
consideration of Bakke began in the new administration
of President Jimmy Carter, early drafts of the brief both
supported armative action and indicated that the program should be struck down and Bakke admitted. This
stance reected the mixed support of armative action
at that time by the Democrats. Minorities and others in
that party complained, and in late July 1977, Carter announced that the governments brief would rmly support
armative action. That document, led October 3, 1977
(nine days before oral argument), stated that the government supported programs tailored to make up for past discrimination, but opposed rigid set-asides.[57] The United
States urged the court to remand the case to allow for
further fact-nding (a position also taken by civil rights
groups in their amicus briefs).[57]
While the case was awaiting argument, another white
student, Rita Clancy, sued for admission to U.C.-Davis
Medical School on the same grounds as Bakke had. In
September 1977, she was ordered admitted pending the
outcome of the Bakke case. After Bakke was decided, the
university dropped eorts to oust her, stating that as she
had successfully completed one year of medical school,
she should remain.[58]

2.2 Argument and deliberation

Protest against the California Supreme Courts decision in Bakke,

Los Angeles, May 7, 1977

Oral argument in Bakke took place on October 12, 1977.

There was intense public interest in the case; prospective attendees began to line up the afternoon before.
The court session took two hours, with Cox arguing for
the university, Colvin for Bakke, and Solicitor General
Wade H. McCree for the United States.[59] Colvin was
admonished by Justice Byron White for arguing the facts,
rather than the Constitution.[60] Cox provided one of the
few moments of levity during the argument when Justice
Harry A. Blackmun wondered whether the set-aside seats
could be compared to athletic scholarships. Cox was willing to agree, but noted that he was a Harvard graduate,
and as for sporting success, I don't know whether its our
aim, but we don't do very well.[61]

The parties duly led their briefs. The universitys legal

team was now headed by former U.S. Solicitor General
and Watergate special prosecutor Archibald Cox, who
had argued many cases before the Supreme Court. Cox
wrote much of the brief, and contended in it that the
outcome of this controversy will decide for future generations whether blacks, Chicanos and other insular minorities are to have meaningful access to higher education and
real opportunities to enter the learned professions.[53] Beginning the day after the argument, the justices lobbied
The university also took the position that Bakke had each other through written memorandum.[62] At a confer-

2.3

Decision

5
mun had not yet weighed in. Powell stated his views, after
which Brennan, hoping to cobble together a ve-justice
majority to support the program, or at least to support the
general principle of armative action, suggested to Powell that applying Powells standard meant that the lower
court decision would be armed in part and reversed in
part. Powell agreed.[67]
Even when Blackmun returned in early 1978, he was slow
to make his position on Bakke known. It was not until May 1 that he circulated a memorandum to his colleaguess chambers, indicating that he would join Brennans bloc, in support of armative action and the universitys program. This meant that Powell was essential
to either side being part of a majority. Over the following eight weeks, Powell ne-tuned his opinion to secure
the willingness of each group to join part of it. The other
justices began work on opinions that would set forth their
views.[68]

2.3 Decision
Poster for rally urging that armative action be upheld in Bakke,
October 1977

ence held among justices on October 15, 1977, they decided to request further brieng from the parties on the
applicability of Title VI.[63] The supplemental brief for
the university was led on November 16, and argued that
Title VI was a statutory version of the Equal Protection
Clause of the Fourteenth Amendment and did not allow
private plaintis, such as Bakke, to pursue a claim under it. Bakkes brief arrived the following day. Colvin
submitted that Bakke did have a private right of action,
and that his client did not want the university to suer
the remedy prescribed under Title VI for discriminatory
institutionsloss of federal fundingbut wanted to be
admitted.[64] In November, Justice Blackmun left Washington to have prostate surgery at the Mayo Clinic.[65]
Blackmuns absence did not stem the ow of memos, notably one on November 22 from Justice Lewis Powell, analyzing the minority admissions program under the strict
scrutiny standard often applied when government treats
some citizens dierently from others based on a suspect
classication such as race. Concluding that the program
did not meet the standard, and must be struck down,
Powells memorandum stated that armative action was
permissible under some circumstances, and eventually
formed much of his released opinion.[66]
At the justices December 9 conference, with Blackmun
still absent, they considered the case. Counting heads,
four justices (Chief Justice Warren E. Burger and Justices Potter Stewart, Rehnquist, and John Paul Stevens)
favored arming the California Supreme Courts decision. Three (Justices Brennan, White, and Thurgood
Marshall) wanted to uphold the program. Justice Black-

Justice Lewis F. Powell

The Supreme Courts decision in Bakke was announced

on June 28, 1978. The justices penned six opinions; none
of them, in full, had the support of a majority of the court.
In a plurality opinion,[lower-alpha 1] Justice Powell delivered
the judgment of the court. Four justices (Burger, Stewart, Rehnquist, and Stevens) joined with him to strike
down the minority admissions program and admit Bakke.
The other four justices (Brennan, White, Marshall, and
Blackmun) dissented from that portion of the decision,
but joined with Powell to nd armative action permissi-

ble under some circumstances, though subject to an intermediate scrutiny standard of analysis. They also joined
with Powell to reverse that portion of the judgment of the
California Supreme Court that forbade the university to
consider race in the admissions process.[69]

2.3.1

Powells opinion

U.S. SUPREME COURT CONSIDERATION

and sought to include them as more than a token part of

a racially and culturally diverse student body. Although a
white student might still lose out to a minority with lesser
academic qualications, both white and minority students
might gain from non-objective factors such as the ability
to play sports or a musical instrument. Accordingly, there
was no constitutional violation in using race as one of several factors.[74][75]

Powell opined that because the university had admitted

that it could not prove that Bakke would not have been
admitted even had there been no special admissions program, the portion of the California Supreme Courts decision ordering Bakkes admission was proper, and was
upheld. Nevertheless, the state was entitled to consider
race as one of several factors, and the portion of the Caljudgment which had ordered the contrary
Turning to the program itself, Powell determined that ifornia courts [76]
was
overruled.
it was not simply a goal, as the university had contended, but a racial qualicationassuming that U.C.Davis could nd sixteen minimally qualied minority students, there were only 84 seats in the freshman class 2.3.2 Other opinions
open to white students, whereas minorities could compete for any spot in the 100-member class. He traced the Brennan delivered the joint statement of four justices:
history of the jurisprudence under the Equal Protection Marshall, White, Blackmun and himself. In verbally inClause, and concluded that it protected all, not merely troducing their opinion in the Supreme Court courtroom,
African Americans or only minorities. Only if it served a Brennan stated that the central meaning of the Bakke
compelling interest could the government treat members decision was that there was a majority of the court in favor
of the continuation of armative action.[77] In the joint
of dierent races dierently.[72]
Powell noted that the university, in its briefs, had cited opinion, those four justices wrote, government may take
decisions where there had been race-conscious remedies, race into account when it acts not to demean or insult any
cast on minorisuch as in the school desegregation cases, but found them racial group, but to remedy disadvantages
[78]
ties
by
past
racial
prejudice.
They
suggested
that any
inapposite as there was no history of racial discriminaadmissions
program
with
the
intention
of
remedying
past
tion at the University of California-Davis Medical School
race
discrimination
would
be
constitutional,
whether
that
to remedy. He cited precedent that when an individinvolved
adding
bonus
points
for
race,
or
setting
aside
a
ual was entirely foreclosed from opportunities or bene[79]
specic
number
of
places
for
them.
ts provided by the government and enjoyed by those of
Justice Powell, after setting forth the facts of the case, discussed and found it unnecessary to decide whether Bakke
had a private right of action under Title VI, assuming that
was so for purposes of the case.[70] He then discussed the
scope of Title VI, opining that it barred only those racial
classications forbidden by the Constitution.[71]

a dierent background or race, this was a suspect classication. Such discrimination was only justiable when
necessary to a compelling governmental interest. He rejected assertions by the university that government had a
compelling interest in boosting the number of minority
doctors, and deemed too nebulous the argument that the
special admissions program would help bring doctors to
underserved parts of Californiaafter all, that purpose
would also be served by admitting white applicants interested in practicing in minority communities. Nevertheless, Powell opined that government had a compelling
interest in a racially diverse student body.[73]

White issued an opinion expressing his view that there

was not a private right of action under Title VI.[80][81]
Thurgood Marshall also wrote separately, recounting
at length the history of discrimination against AfricanAmericans, and concluding, I do not believe that anyone
can truly look into Americas past and still nd that a remedy for the eects of that past is impermissible.[79][82]
Blackmun subscribed to the idea of color consciousness,
declaring that, in order to get beyond racism, we must
rst take account of race. There is no other way. And in
order to treat some persons equally, we must treat them
dierently. We cannotwe dare notlet the Equal Pro[80][83]
In a part of the opinion concurred in by Chief Justice tection Clause perpetuate racial superiority.
Burger and his allies, Powell found that the program, Justice Stevens, joined by Burger, Stewart and Rehnquist,
with its set-aside of a specic number of seats for mi- concurring in part and dissenting in part in the judgment,
norities, did discriminate against Bakke, as less restric- found it unnecessary to determine whether a racial preftive programs, such as making race one of several factors erence was ever allowed under the Constitution. A narin admission, would serve the same purpose. Powell of- row nding that the university had discriminated against
fered the example (set out in an appendix) of the admis- Bakke, violating Title VI, was sucient, and the court
sions program at Harvard University as one he believed was correct to admit him.[84] It is therefore perfectly
would pass constitutional musterthat institution did not clear that the question whether race can ever be used as a
set rigid quotas for minorities, but actively recruited them factor in an admissions decision is not an issue in this case,

7
and that discussion of that issue is inappropriate.[85] According to Stevens, "[t]he meaning of the Title VI ban on
exclusion is crystal clear: Race cannot be the basis of excluding anyone from a federally funded program.[86][87]
He concluded, I concur in the Courts judgment insofar
as it arms the judgment of the Supreme Court of California. To the extent that it purports to do anything else,
I respectfully dissent.[88]

Reaction

Equal justice under law": the west facade of the U.S. Supreme
Court building

Newspapers stressed dierent aspects of Bakke, often reecting their political ideology. The conservative Chicago
Sun-Times bannered Bakkes admission in its headline,
while noting that the court had permitted armative action under some circumstances. The Washington Post,
a liberal newspaper, began its headline in larger-thannormal type, Armative Action Upheld before going on to note that the court had admitted Bakke and
curbed quotas.[89] The Wall Street Journal, in a headline, deemed Bakke The Decision Everybody Won.[90]
According to Oxford University Chair of Jurisprudence
Ronald Dworkin, the courts decision was received by
the press and much of the public with great relief, as an
act of judicial statesmanship that gave to each party in the
national debate what it seemed to want most.[91]
Attorney General Grin Bell, after speaking with President Jimmy Carter, stated, my general view is that
armative action has been enhanced, and that such
programs in the federal government would continue as
planned.[92] Equal Employment Opportunity Commission Chair Eleanor Holmes Norton told the media that
the Bakke case has not left me with any duty to instruct
the EEOC sta to do anything dierent.[93]

unusually impoliticapproach taken by the Medical

School of U.C.-Davis.[94] Robert M. O'Neil wrote in
the California Law Review the same year that only rigid
quotas were foreclosed to admissions ocers and even
relatively subtle changes in the process by which applications were reviewed, or in the resulting minority
representation, could well produce a dierent alignment
[of justices]".[95] Law professor and future judge Robert
Bork wrote in the pages of The Wall Street Journal that
the justices who had voted to uphold armative action
were hard-core racists of reverse discrimination.[92]
Allan Bakke had given few interviews during the pendency of the case, and on the day it was decided, went
to work as usual in Palo Alto.[54] He issued a statement
through attorney Colvin expressing his pleasure in the result and that he planned to begin his medical studies that
fall.[96] Most of the lawyers and university personnel who
would have to deal with the aftermath of Bakke doubted
the decision would change very much. The large majority of armative action programs at universities, unlike that of the U.C.-Davis medical school, did not use
rigid numerical quotas for minority admissions and could
continue.[97] According to Bernard Schwartz in his account of Bakke, the Supreme Courts decision permits
admission ocers to operate programs which grant racial
preferencesprovided that they do not do so as blatantly
as was done under the sixteen-seat 'quota' provided at
Davis.[98]

4 Aftermath
Allan Bakke, Americas best known freshman, enrolled at the U.C.-Davis medical school on September
25, 1978.[99] Seemingly oblivious to the questions of
the press and the shouts of protesters, he stated only
I am happy to be here before entering to register.[99]
When the university declined to pay his legal fees, Bakke
went to court, and on January 15, 1980, was awarded
$183,089.[96] Graduating from the U.C.-Davis medical
school in 1982 at age 42, he went on to a career as an
anesthesiologist at the Mayo Clinic and at the Olmsted
Medical Group in Rochester, Minnesota.[100][101]

In 1996, Californians by initiative banned the states use

of race as a factor to consider in public schools admission policies.[102] [lower-alpha 2] The universitys Board of
Regents, led by Ward Connerly, voted to end race as a
factor in admissions. The regents, to secure a diverse student body, implemented policies such as allowing the top
4% of students in California high schools guaranteed admission to the University of California System[104] this,
[105]
Harvard Law School Professor Laurence Tribe wrote in it was felt, would aid minority inner-city students.
1979, the Court thus upheld the kind of armative ac- Dworkin warned in 1978 that Powells opinion suers
tion plan used by most American colleges and univer- from fundamental weaknesses, and if the Court is to arsities, and disallowed only the unusually mechanical rive at a coherent position, far more judicial work resome would say unusually candid, others would say mains to be done than a relieved public yet realizes.[91]

The Supreme Court has continued to grapple with the

question of armative action in higher education. In
the 2003 case of Grutter v. Bollinger, it rearmed Justice Powells opinion in Bakke in a majority opinion, thus
rendering moot concerns expressed by lower courts that
Bakke might not be binding precedent due to the fractured
lineup of justices in a plurality opinion.[106] The courts
decision in the 2013 case of Fisher v. University of Texas
made alterations to the standards by which courts must
judge armative action programs, but continued to permit race to be taken into consideration in university admissions, while forbidding outright quotas.[107][108]

Notes and references

Notes:

NOTES AND REFERENCES

[17] DeFunis, 416 U.S. at 350.

[18] ONeill, Timothy J. Bakke and the Politics of Equality:
Friends and Foes in the Classroom of Litigation. Middletown, CT: Wesleyan University Press. pp. 2127. ISBN
978-0819561992.
[19] Dreyfuss, Joel (1979). The Bakke Case: the Politics of
Inequality. New York: Harcourt Brace Jovanovich. pp.
13, 16. ISBN 978-0156167826.
[20] Thernstrom, Stephan; Thernstrom, Abigail (2009) [1999].
America in Black and White. Simon & Schuster. ISBN
978-1439129098.
[21] Lindsey, Robert (June 29, 1978). Bakke: A man driven
to become a doctor. The New York Times via Pittsburgh
Post-Gazette. p. 8.
[22] Santa Clara Law Review, p. 231.
[23] Schwartz, p. 5.

[1] Under Supreme Court precedent, a plurality opinion, for

purposes of precedent, is to be viewed as that position
taken by those Members who concurred in the judgments
on the narrowest grounds. Marks v. United States, 430
U.S. 188, 193 (1977).
[2] Californias Proposition 209 mandates that the state shall
not discriminate against, or grant preferential treatment
to, any individual or group on the basis of race, sex, color,
ethnicity, or national origin in the operation of public employment, public education, or public contracting.[103]

References:

[24] Bakke, 438 U.S. at 276.

[25] Ball, p. 52.
[26] Schulman, Bruce J. (2002). The Seventies: The Great Shift
in American Culture, Society, and Politics. Cambridge,
MA: Da Capo Press. p. 69. ISBN 978-0306811265.
[27] Benfell, pp. 17, 5254.
[28] Schwartz, pp. 67.
[29] Schwartz, pp. 78.
[30] Schwartz, p. 8.

[1] Wilkinson, p. 79.

[31] Bakke, 438 U.S. at 277.

[2] Wilkinson, p. 24.

[32] Bakke, 438 U.S. at 275276.

[3] Ball, p. 6.

[33] Trombley, William (July 5, 1976). Medical Dean Aids

'Special Interest' Applicants. Los Angeles Times. pp. C1,
C4. Retrieved August 16, 2013.(subscription required)

[4] Schwartz, pp. 2829.

[5] Green v. County School Board, 391 U.S. 430 (1968).
[6] Green, 391 U.S. at 441.
[7] Swann v. Charlotte-Mecklenburg Board of Education, 402
U.S. 1 (1970).

[34] Nesbitt, Tim (October 1977). Bakke passed over for

white VIPs. The East Bay Voice (Berkeley, CA). pp. 1,
10.
[35] Complete Case Record, p. 7.

[8] Ball, pp. 310.

[36] Ball, pp. 5657.

[9] Schwartz, p. 4.

[37] Ball, p. 58.

[10] Regents of the University of California v. Bakke, 438 U.S.

265, 272275 (1978) (U.S. Supreme Court).
[11] Bakke, 238 U.S. at 274.
[12] Bakke, 438 U.S. at 275.
[13] Ball, pp. 2245.

[38] Bakke, 438 U.S. at 279.

[39] Schwartz, pp. 1819.
[40] Schwartz, p. 19.
[41] Ball, pp. 5860.

[14] DeFunis v. Odegaard, 416 U.S. 312 (1974).

[42] Bakke v. Regents of the University of California, 18 Cal.

3d 34, 553 P.2d 1152, 132 Cal. Rptr. 680 (1976)

[15] DeFunis, 416 U.S. at 314317.

[43] Bakke, 438 U.S. at 279280.

[16] DeFunis, 416 U.S. at 319320.

[44] Bakke, 18 Cal. 3d at 55.

[45] Stevens, p. 24.

[78] Bakke, 438 U.S. at 325.

[46] Bakke, 18 Cal. 3d at 90.

[79] Bakke, 438 U.S. at 378.

[47] Bakke, 438 U.S. at 280.

[80] Ball, p. 140.

[48] Bakke, 18 Cal. 3d at 64.

[81] Bakke, 438 U.S. at 387.

[49] Regents of the University of California v. Bakke, 429

U.S. 953 (1976) (Rehnquist, J., as circuit justice, granting stay).

[82] Ball, pp. 139140.

[50] Ball, p. 61.

[84] Bakke, 438 U.S. at 409411.

[51] Ball, pp. 6467.

[85] Bakke, 438 U.S. at 411.

[52] Epstein & Knight, pp. 346347.

[86] Excerpts from opinions by Supreme Court justices in the

Allan P. Bakke case. The New York Times. June 29,
1978. p. A20. Retrieved August 14, 2013.(subscription
required)

[53] Ball, pp. 6869.

[54] Robert C. Barring, Introduction to the Bakke case in
Complete Case Record at xxixxiv.
[55] Ball, pp. 6970.
[56] Ball, pp. 7683.
[57] Ball, pp. 7477.

[83] Bakke, 438 U.S. at 407.

[87] Bakke, 438 U.S. at 418.

[88] Bakke, 438 U.S. at 421.
[89] Ball, pp. 140141.
[90] Schwartz, pp. 151152.

[58] School drops attempt to bar white student. The Bulletin

(Bend, Oregon). July 5, 1978. Retrieved September 28,
2013.

[91] Ronald Dworkin, The Bakke decision: did it decide anything?" in Complete Case Record at xxvxxxiv.

[59] Schwartz, pp. 4752.

[92] Ball, p. 142.

[60] Weaver Jr., Warren (October 13, 1977). Justices hear

Bakke arguments but give little hint on decision. The
New York Times. pp. A1, B12. Retrieved August 12,
2013.(registration required)

[93] Ball, pp. 142143.

[61] Schwartz, p. 48.

[62] Epstein & Knight, pp. 347349.
[63] Ball, pp. 103104.

[94] Tribe, p. 864.

[95] O'Neil, p. 144.
[96] Ball, p. 143.
[97] Herbers, John (June 29, 1978). A plateau for minorities.
The New York Times. pp. A1, A22. Retrieved August 15,
2013.(subscription required)

[64] Ball, pp. 105106.

[98] Schwartz, p. 153.
[65] Ball, p. 107.
[66] Schwartz, pp. 8185.
[67] Schwartz, pp. 98107.
[68] Schwartz, pp. 120141.
[69] Bakke, 438 U.S. at 265272.
[70] Bakke, 438 U.S. at 272284.
[71] Bakke, 438 U.S. at 284287.
[72] Bakke, 438 U.S. at 287299.
[73] Bakke, 438 U.S. at 300315.

[99] Kushman, Rick (September 27, 1978). Bakke enters UC

Davis Medical School. The California Aggie (Davis, California). pp. 1, 8.
[100] Ball, p. 46.
[101] Diamond, S.J. (August 30, 1992). Where are they now?
: A drifter, a deadbeat and an intensely private doctor.
Los Angeles Times. Retrieved October 5, 2013.
[102] Egelko, Bob (February 14, 2012). U.S. appeals court
hears challenge to Prop. 209. San Francisco Chronicle.
Retrieved August 17, 2013.

[74] Ball, pp. 137139.

[103] Text of Proposition 209. California Secretary of State.

Retrieved August 17, 2013.

[75] Bakke, 438 U.S. at 300320.

[104] Ball, p. 164.

[76] Bakke, 438 U.S. at 320321.

[105] California governor touts 4 percent solution. AP via

Bangor Daily News. January 6, 1999. Retrieved October
6, 2013.

[77] Schwartz, pp. 146147.

10

[106] [http://laws.findlaw.com/us/539/306.html
Bollinger, 539 U.S. 306 (2003).

Grutter

v.

EXTERNAL LINKS

6 External links

[107] Liptak, Adam (June 25, 2013). Justices step up scrutiny

of race in college entry. The New York Times. Retrieved
August 16, 2013.

Oyez.org: recordings of the oral argument (October 12, 1977) and opinion announcement (June 28,
1978) in Bakke

[108] [https://scholar.google.com/scholar_case?case=
6883717302676149601&hl=en&as_sdt=2&as_vis=
1&oi=scholarr Fisher v. University of Texas, 133 S. Ct.
2411 (2013).

Text of Regents of the University of California v.

Bakke, 438 U.S. 265 (1978) is available from:
Findlaw Justia

5.1

Bibliography

Ball, Howard (2000). The Bakke Case: Race, Education, and Armative Action. Lawrence, KS: University Press of Kansas. ISBN 978-070061046-4.
Benfell, Carol (Fall 1977). Should the Constitution really be colorblind?". Barrister (American Bar
Association, Young Lawyers Section) 3 (4): 17, 52
54.
Epstein, Lee; Knight, Jack (2001). Piercing the
Veil: William J. Brennans Account of Regents of
the University of California v. Bakke". Yale Law &
Policy Review (New Haven, CT: Yale Law & Policy
Review, Inc.) 19 (2): 341379. JSTOR 40239568.
O'Neil, Robert M. (January 1979). "Bakke in
balance: some preliminary thoughts. California
Law Review (Berkeley, CA: California Law Review, Inc.) 67 (1): 143170. doi:10.2307/3480092.
JSTOR 3480092.
Regents of the University of California v. Allan
Bakke Complete Case Record 1. Englewood, CO:
Information Handling Services. 1978. ISBN 0910972-91-5.
Review of The Bakke Case: Race, Education,
and Armative Action. Santa Clara Law Review
(Santa Clara, CA: Santa Clara Law Digital Commons).
Schwartz, Bernard (1988). Behind Bakke: Armative Action and the Supreme Court. New York: New
York University Press. ISBN 0-8147-7878-X..
Stevens, John M. (September 1977). The good
news of Bakke". The Phi Delta Kappan (Arlington,
VA: Phi Delta Kappa International) 59 (1): 2326.
JSTOR 20298825.
Tribe, Laurence H. (February 1979). Perspectives
on Bakke: equal protection, procedural fairness, or
structural justice?". Harvard Law Review (Cambridge, MA: The Harvard Law Review Association)
92 (4): 864877. doi:10.2307/1340556. JSTOR
1340556.
Wilkinson III, J. Harvie (1979). From Brown to
Bakke. Oxford, U.K.: Oxford University Press.
ISBN 0-19-502897-X.

11

Text and image sources, contributors, and licenses

7.1

Text

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7.2

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published by Anti-Bakke Decision Coalition, page 2. All four pages examined and no copyright notice. Original artist:
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12

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