Board of Regents v. Bakke: The origins of affirmative action

Abigail Perkiss

When the U.S. Supreme Court opens its session on Wednesday, the justices will hear arguments in Fisher v. University of Texas at Austin, in the fifth Affirmative Action case to reach the bench in less than 40 years.

The case stems from a 2009 dispute where plaintiffs Abigail Fisher and Rachel Michalewicz, both white students, alleged that the flagship Texas University discriminated against non-minority candidates when it used race as a factor for admissions.

The policy, the applicants claimed, violated the Equal Protection Clause of the 14th Amendment of the Constitution.  Michalewicz withdrew from the case in 2011, before it reached the Supreme Court.

The university employs a two-pronged approach in evaluating admissions.  First, any Texas resident who graduates in the top 10 percent of his or her high school class is guaranteed a spot.  In 2008, the Top Ten Percent Program made up 81 percent of the incoming cohort.

To fill the remaining seats, the university looks to a variety of factors, including academic performance, leadership, family status, work experience, community service, and, since 2005, race.

Fisher was not eligible under the Top Ten Percent plan.  Before the court, her attorneys will argue that the inclusion of race as a factor in determining admission for the remaining candidates constitutes an unconstitutional application of race-conscious policies.

In 1974, the court heard arguments in DeFunis v. Odegaard, in which Marco DeFunis, a white applicant to the University of Washington Law School, alleged that the school’s race-conscious admissions policies were in violation of the 14th Amendment and, as such, unconstitutional.

At trial, the court agreed with the plaintiff and mandated that the university grant DeFunis admission in the fall of 1971.  On appeal, the Supreme Court of Washington reversed, holding that the admissions policy was constitutional as it served to further state interests in maintaining a racially diverse student body, thereby easing the shortage of non-white members of the legal profession.

As the case worked its way to the U.S. Supreme Court, DeFunis continued his studies, and when the Court heard the case three years later, the petitioner was in the midst of his final term at the law school and would, regardless of the decision, be able to complete his studies.  In a 5-4 judgment, the bench declared the case moot, because the student had been able to enroll and earn his degree at the University of Washington; as such, he was no longer an aggrieved party.

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In issuing this ruling, the court avoided the question of the constitutionality of race-conscious admissions policies.

It was four years later, in the case of Regents of the University of California v. Bakke, that the Supreme Court first addressed the merits of affirmative action.

Allan Bakke, a 35-year-old white applicant, was twice denied admission to the University of California Medical School at Davis.  The university’s policy reserved 16 seats of 100 in its entering class for ‘qualified’ non-white candidates, seeking to rectify longstanding and persistent minority exclusion from the medical profession.  Bakke’s grades and test scores were higher than the students admitted through this affirmative action policy in the two years that he was rejected.

At trial, Bakke’s attorneys argued that their client was denied admission from the university solely on the basis of race.  Charging that the university’s policy violated both the Equal Protection Clause of the 14th Amendment and the Civil Rights Act of 1964, Bakke sought immediate injunctive relief.

Like DeFunis before him, he called on the court to force the University of California-Davis to grant him admission to their medical school.  The school filed a counter-claim, calling for a declaratory judgment affirming the constitutionality of their special admissions program.

The lower court held that the university’s policy of reserving 16 slots for minority applicants operated as a racial quota system, in violation of both the Constitution and the 1964 Civil Rights Act.  Bakke was admitted to the medical school in 1978.

That same year, the U.S. Supreme Court agreed to hear the case.

In a historical split, four justices held that any racial quota system violated the Civil Rights Act of 1964, and four held that the use of race in higher education admissions policies was constitutionally permissible.  Justice Lewis Powell, casting the deciding vote, joined both decisions.

Powell wrote that the system of strict racial quotas employed by the University of California was, indeed, violative of the 14th Amendment; however, he continued, the use of race as one criterion among many was permissible in determining admission.  “Race or ethnic background,” wrote Powell, “may be deemed a ‘plus’ in a particular applicant’s file, yet it does not insulate the individual from comparison with all other candidates for available seats.”

For Allan Bakke, the decision was a victory.  He continued with his studies at the University of California Medical School at Davis, graduating in 1982.

For both advocates and opponents of affirmative action, however, it was more complicated.  While the Supreme Court expressly condemned quotas as unconstitutional, this split decision paved the way for race-conscious policies that serve to justify state interests in creating and maintaining diversity.  Whether the holding was binding, without a clear majority, remained in question.

In 2003’s Grutter v. Bollinger, the court affirmed the 1978 decision.  Writing for a 5-4 majority, Justice Sandra Day O’Connor held that race could be considered as one piece of a “holistic review” of an student’s file, “giving serious consideration to all ways an applicant might contribute to a diverse educational environment.”

Today, with a reconstituted – and decidedly more conservative – court, the precarious compromise reached in Bakke, and thus the legacy of affirmative action, may soon be up for grabs.

Abigail Perkiss is an assistant professor of history at Kean University in Union, New Jersey and a fellow at the Kean University Center for History, Politics and Policy.

For further reading:

Regents of the University of California v. Bakke, 438 U.S. 253 (1978):

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

Matt Johnson, “Affirmative Action’s Unlikely Allies,” History News Network (8 October 2012):