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The US Supreme Court and Affirmative Action: The Cases of Bakke, Weber and Fullilove

Published online by Cambridge University Press:  16 January 2009

R. A. Maidment
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Extract

If reports are to be believed, “waiting for Bakke” was the main preoccupation of the Washington press corps in the Spring of 1978. The case had been argued before the United States Supreme Court in a blaze of publicity, and, while the nine judges were considering the arguments, there was no shortage of commentators to “advise” the Court. As one of these “advisers,” Ronald Dworkin, noted “No lawsuit has ever been more widely watched or more thoroughly debated in the national and international press before the Court's decision.” Thus when Mr. Justice Powell began to read the opinion of the Court in Regents of the University of California v. Bakke, a “hush enveloped the courtroom.” The audience was hushed but expectant because it believed that it was about to witness a judgement of momentous historical importance. The pre-decision coverage suggested that the Court was either going to give or deny its constitutional imprimatur to the principle of affirmative action or preferential treatment. But unfortunately the judgement did not live up to its advance publicity. It did not definitively decide the issue, in fact it decided remarkably little. True, Allan Bakke did win and the University of California lost. However, the fate of affirmative action programmes was not resolved, and indeed despite the Supreme Court's pronouncements in two further cases, United Steelworkers of America v. Weber and Fullilove v. Klutznick, continues to hang in the constitutional balance.

Type
Research Article
Information
Journal of American Studies , Volume 15 , Issue 3 , December 1981 , pp. 341 - 356
Copyright
Copyright © Cambridge University Press 1981

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References

R. A. Maidment is Lecturer in American Studies at the University of Keele, Keele, Staffordshire ST5 5BG. A version of this paper was delivered at the 1981 Annual Conference of the British Association for American Studies.

1 Dworkin, R., “Why Bakke Has No Case,” The New York Review of Books, 24, No. 18, p. 11Google Scholar.

2 438 U.S. 265 (1978). References to Bakke in this article will be to the slip opinion No. 76–811.

3 “Bakke Wins, Quotas Lose,” Time, 10 07 1978, p. 8Google Scholar.

4 The references to Weber will be to The United States Law Week, 47, No. 50, hereafter cited as 47 LW 4851.

5 The references to Fullilove will be to the slip opinion No. 78–1007.

6 347 U.S. 483 (1954).

7 It must be emphasised that even after these cases, Bakke, Weber and Fullilove, there is no definitive majority position on the question of affirmative action. There is, however, enough material in the plethora of opinions, particularly in Bakke, issued by members of the Court to distinguish the contours and the constituent elements of a majority position, although one must recognize that this may be changed by resignations and subsequent appointments by President Reagan.

8 416 U.S. 312 (1974).

9 The DeFunis case had arisen out of circumstances similar to those in Bakke. The University of Washington Law School had established procedures for admission which favoured minority applicants. Marco DeFunis, a white male, was rejected by UWLS in 1970, and then again in 1971, despite his possessing qualifications superior to minority applicants who were admitted. In 1971, DeFunis decided to file suit and was successful in the trial court, which ordered his admission to UWLS for the academic year 1971–1972. The trial court, however, was overruled by the Washington Supreme Court, but DeFunis continued his education at UWLS and it was his continuing presence at UWLS that led five members of the United States Supreme Court to hold the case moot. Chief Justice Burger, plus Justices Blackmun, Powell, Rehnquist and Stewart, in a per curiam opinion declared that as DeFunis would be graduating from UWLS there was no longer a genuine legal controversy.

10 42 U.S.C. 2000d.

11 The principal federal agencies concerned with the development of affirmative action programmes are the Equal Employment Opportunity Commission and the Office of Federal Contract Compliance Programs.

12 Smith, L., “Equal Opportunity Rules are getting Tougher,” Fortune, 19 06 1978, p. 153Google Scholar.

13 Ibid., p. 154.

14 It is curious that Asians were specifically included within the special admissions programme because in 1973 and 1974 students of Asian origin gained ten per cent of the admissions under the general admissions programme to the Davis Medical School, while Asians comprised somewhat less than three per cent of the population of California. See O'Neil, R. M., “Bakke in Balance: Some Preliminary Thoughts,” Cal. Law Rev., 67 (1979), 171, 183Google Scholar.

15 18 Cal. 3d 34 (1976).

16 On the whole, supporters of affirmative action programmes drew greater comfort from Powell's opinion. Drew S. Days 3rd, Assistant Attorney General for Civil Rights in the Carter administration, drew comfort from the decision since in Days' words, “Mr. Justice Powell's opinion is helpful….” New York Times Weekly Review, 2 07 1978, p. 1Google Scholar. The Attorney General, Griffin B. Bell, and Joseph A. Califano, Jr, Secretary of Health, Education and Welfare, welcomed Bakke because the opinion was “the first time the Supreme Court has upheld affirmative action and they've done it in about as strong a way as possible.” Congressman Parren J. Mitchell, Chairman of the Black Caucus, approved of the opinion of the Court but feared that there could be need “to push the panic button [if] the hard-core in this country … misinterpret the decision.” Congregressional Quarterly Weekly Report, 1 07 1978, p. 1653Google Scholar. For other immediate responses to Bakke of both politicians and academic opinion, see New York Times, 29 June 1978.

17 “In summary, it is evident that the Davis special admissions program involves the use of an explicit racial classification…. It tells applicants who are not Negro, Asian, or “Chicano” that they are totally excluded from a specific percentage of the seats…. For this reason, that portion of the California court's judgement holding petitioner's special admissions program invalid under the Fourteenth Amendment must be affirmed.” No. 76–811, pp. 50–51.

18 As Ronald Dworkin noted, “The decision of the Supreme Court in Bakke was received by the press and much of the public…as an act of judicial statesman ship….” Dworkin, R., “The Bakke Decision: Did it Decide Anything,” The New York Review of Books, 25, No. 13, p. 20Google Scholar. See also, Lewis, A., “Bakke, May Change a Lot While Changing No Law”, New York Times Weekly Review, 2 07 1978, p. 1Google Scholar.

19 Fullilove concerned the constitutionality of the minority business enterprise (MBE) provision of the Public Works Employment Act of 1977. These provisions required that ten per cent of federal funds designated for local public works projects were to be set aside and allocated to business owned by minority group members, who were defined as Negroes, Spanish-speaking, Orientals, Indians, Eskimos and Aleuts. Fullilove, one of a group of construction contractors, claimed that he had sustained economic injury due to the enforcement of the ten per cent MBE requirement. He filed a suit in the US District Court questioning the constitutionality of the MBE provision. The District Court upheld the validity of the MBE programme as did the United States Court of Appeals. On 2 July 1980 Chief Justice Burger upheld the MBE programme. Burger's opinion was supported by Justices White and Powell. Marshall, Brennan and Blackmun, while concurring in the result, did so on somewhat different grounds. The interesting fact about Burger's opinion is his attempt to avoid the central constitutional questions raised by affirmative action programmes and to locate the evaluation of Fullilove in the realm of Congressional authority under the Commerce Clause and the spending power of the General Welfare Clause.

20 The Congressional debates on the 1964 Civil Rights Act provide an overwhelming weight of evidence that Brennan's interpretation of the Act is markedly different from that of the supporters of the Act in both the Senate and the House of Representatives. In particular, see the remarks of Representative Celler, Chairman of the House Judiciary Committee and floor manager of the legislation in the House, and Senator Humphrey, majority whip in the Senate. See 110 Cong. Rec. 1519, 6553 (1964).

21 42 U.S.C. 2000e–2(d).

22 42 U.S.C. 2000e–2a(2).

23 42 U.S.C. 2000e–2(j).

24 110 Cong. Rec. 1518 (1964).

25 Ibid., p. 6549.

26 47 LW 4851, 4853.

27 Ibid., p. 4859.

28 The position pre-Brown was that public services provided by the State could be on a racially separate but equal basis. The separate but equal rule, of course, was devised in Plessy v. Ferguson, 163 U.S. 537 (1896). For an extended discussion of Plessy, see Maidment, R. A., “Plessy v. Ferguson Re-examined,” Journal of American Studies, 7 (1973), 125–32CrossRefGoogle Scholar.

29 402 U.S. 1 (1971).

30 424 U.S. 747 (1975).

31 No. 76–811, p. 41 (Opinion of Brennan, J.)

32 Bickel, A., The Morality of Consent (1975), p. 133Google Scholar.

33 The literature inveighing against the imperialism of the federal judiciary is rapidly growing, but perhaps the most persuasive tract to date and certainly the most scholarly is Berger, R., Government by Judiciary (1977)Google Scholar.

34 See Maidment, R. A., “Changing Styles in Constitutional Ajudication: The United States Supreme Court and Racial Segregation,” Public Law (Summer, 1977), pp. 168–86Google Scholar.

35 94 U.S. 113, 134 (1877).