The Issue Before the Court: Who Gets Ahead in America?




The case revolves around one white man's claim that he was discriminated against in favor of blacks, but far more is at stake in the deliberations now getting under way before the Supreme Court of the United States. Is America ever really going to be the Land of Opportunity for all its citizens?

by McGeorge Bundy

THIS fall the U.S. Supreme Court hears argument in the case of The Regents of the University of California v. Allan Bakke. Its response may be fateful for the future of racial fairness in this country.

The question immediately presented is whether Alan Bakke, a white man of evident determination and ability, has been wrongfully denied admission to The Medical School of the University of California at Davis because sixteen places out of a hundred in each entering class have been reserved for qualified members of racial minorities. The Supreme Court of California has held that this special admissions program is unconstitutional on the ground that it violates the rights guaranteed to the majority by the equal protection clause of the Fourteenth Amendment.

More broadly, because of the argument by which the California Supreme Court upheld Mr. Bakke's claim, the question presented is whether any educational institution whose admissions are selective may consider the race of any person as an affirmative element in qualification for entry. What is directly threatened is the nationwide effort to open our most selective educational institutions to more than token numbers of those who are not white. And indirectly but forcefully, the California doctrine threatens the constitutionality of all forms of affirmative action that are aimed explicitly at helping racial minorities.

Right at the outset it is well to report the alarm the California decision has produced among people who are convinced that the efforts upon which they are engaged are not merely legitimate, but in some fundamental sense required by our Constitution, our history, and our intent as a nation to get past our terrible inheritance of racism. These efforts have effected a transformation in the quality and quantity of high-level opportunity for blacks and other under-represented minorities. This whole enterprise is now challenged. No one knows how far the California doctrine might affect private as well as public institutions, and colleges as well as professional schools. But the prospect of heavy direct and indirect effect throughout the world of selective higher education and beyond is chilling. I weigh my words when I report that among those affected the fate of the appeal from California is increasingly seen to have an importance not exceeded by any single case from the past, not the Brown case of 1954, and not the Dartmouth College case itself, in which the independence of the chartered private college was first upheld.

THE struggle for racial equality is old, but the constitutional questions presented by special admissions to colleges and graduate schools are new. Through the 1930s and 1940s the cases that rose to the Supreme Court were concerned with the exclusion of blacks from segregated professional schools. In the 1950s and 1960s the Court was occupied first with its great decision in Brown, declaring segregation in the public schools unconstitutional, and then with a long series of cases in which it was presented with one effort after another to evade the import of that decision. It did not confront problems like those of Allan Bakke because programs like the one to which he objects did not exist. In the early 1970s, a quite similar case, that of Marco DeFunis against the Law School of the University of Washington, was never decided because DeFunis was eventually admitted to the Law School and had almost finished by the time the Supreme Court was ready. The DeFunis case had great consequences in arousing feelings and stirring reflection, but it did nothing to clarify the constitutional standing of special admissions.

Large-scale attempts to increase the numbers of minorities in selective colleges and professional schools have a short history. In medical schools, for example, the effort became general less than ten years ago. These initial actions were compelled neither by government nor by courts. They were the product rather of the recognition, by whites as well as blacks, that the barriers to educational opportunity did not tumble in a day after the civil rights victories of the 1950s and early 1960s. Black demand, white awareness, riots in the cities, and the death of Martin Luther King, Jr. were all a part of what brought the change, but its deeper and more durable cause was the growing conviction that there was a fundamental contradiction between an asserted opposition to racism and the maintenance, by whatever process of selection, of essentially all-white colleges and professional schools. Law schools, medical schools, graduate schools, and selective colleges all across the country began to recognize a direct responsibility to find and make room for larger numbers of qualified nonwhites.

Many legitimate purposes have animated those engaged in this effort, but the deepest and most general objective--toward which any one school or college can do only a little--has been to ensure full and fair access to all parts of our social, economic, and professional life for nonwhite Americans. Of course all kinds of Americans deserve such access, and it is right to remember from the outset that no past injustice permits us to set any one group above any other. But there can be no blinking the enormous and unique set of handicaps which our whole history, right up to the present, has imposed on those who are not white. It is not the fault of today's laws or of the present Supreme Court that racism should be our most destructive inheritance. But that reality makes the effort to overcome it a matter of the most compelling interest.

The essence of this new enterprise, whether at the college or the graduate level, has been the making of special attempts to find, attract, enroll, and support students who are members of disadvantaged racial minorities. So far this has meant mainly blacks, and in this discussion I shall often refer to them alone, simply to shorten matters. But the programs are directed also at Hispanic students and native Americans, and often at Americans of Asian origin. They include one or all of the following elements: active recruitment, targets or goals or even quotas for numbers enrolled, high levels of financial aid, and special courses or other academic arrangements when they are needed to help the student succeed. In all these programs attention to race, indeed special attention because of race, has been essential.

These new programs, in medical schools and elsewhere, have not yet been comprehensively and comparatively studied, and even if we knew more about them than we do, we could not know enough for confident judgment of their effects. The first medical students to enter by special admissions have not yet had time to prove themselves as practicing physicians, and in any case the programs of the medical schools have changed in shape while the number of minority students admitted has been growing, from less than 300 in 1968 to 1400 in 1976. Such evidence as we have--much of it oral and informal--suggests that most medical schools have had a great deal to learn in this short time about judging minority candidates, about helping them to come to terms with their own environment, and about treading the narrow and necessary path between sympathetic recognition of difficulties and cynical or condescending acceptance of unsatisfactory performance. Many minority students have had much to learn about these same matters.

These conclusions seem to fit not only medical schools but law schools and selective colleges, public and private. In law schools, the number of minorities has more than trebled in less than ten years. In selective colleges, where the general effort began a little earlier, the results over a fifteen-year period are at least comparable, and the process has grown steadily more skillful and effective. The slowest progress so far has been in the area of graduate education in the arts and sciences, but even here the 1970s have seen a convincing demonstration that greatly increased numbers of minority students can succeed if they are energetically recruited and adequately supported.

Racial mistrust and misunderstanding have not been exorcised by these programs, and sensitive observers know that all concerned, white and nonwhite alike, have a long way to go. But there is a clear and positive relation between effort and success in these programs, and much evidence that they are working better now than when they began. It is surely not an accident that the California opinion has aroused affected groups and institutions to the submission of a wholly unprecedented number of briefs defending the use of racial considerations as a necessary means of enlarging the enrollment of nonwhite students in selective institutions. One of the most important of these briefs is the one filed by the federal government on September 19 after intense and prolonged debate, a brief strongly opposing the California decision.

BUT the California decision also has its passionate supporters, and it is important to understand the strong and honorable forces, social and legal, that have brought this situation before the Supreme Court.

The moral and intellectual standing of those who complain against special admissions is not in doubt. When we find on the same side men as different as Justice Douglas and the late Alexander Bickel of Yale, and when a Court that has earned respect and even criticism for its liberalism comes down as hard as has the Supreme Court of California, we must understand what troubles them so much.

The first and strongest of their contentions is simply that both in the law and in common feeling there has developed a heavy suspicion of any program, whatever its motive, which gives members of one race any advantage over members of another on account of race alone. Ironically but understandably, the most sweeping and eloquent expressions of this sentiment may have come from the leaders in the battle for black civil rights.

In 1947 Thurgood Marshall himself, then the director of the Legal Defense and Educational Fund of the NAACP, denounced the classification by race under which the laws of Texas deprived Herman Sweatt of admission to law school: "There is no understandable factual basis for classification by race, and under a long line of decisions by the Supreme Court, not on the question of Negroes, but on the Fourteenth Amendment, all courts agree that if there is no rational basis for the classification, it is flat in the teeth of the Fourteenth Amendment." As we shall see, the defenders of special admissions programs argue strongly today that the use of racial classifications in those programs is not only rational but necessary for compelling purposes, but what deserves emphasis first is that it is easy to relate both the logic and the feeling of Thurgood Marshall's outburst in Texas to the reaction of those who feel that when it comes to choosing who shall be a doctor, there is no rational basis for using color as a test.

A closely related objection to special admissions is that they seem to many to require the use of racial quotas. There has been much haggling about the difference between goals and quotas, and I shall argue that the distinction is not trivial, but when in fact a fixed number of places is reserved for qualified minorities (the situation at Davis), it becomes hard to deny that some spaces that would otherwise be open to all are now closed off to whites. One cannot miss the fervor in the opinion of Justice Mosk for the California court: "No college admission policy in history has been as thoroughly discredited in contemporary times as the use of racial percentages. Originated as a means of exclusion of racial and religious minorities from higher education, a quota becomes no less offensive when it seems to exclude a racial majority." The fervor is underlined, if anything, by the rhetorical excess of the suggestion that a majority that has a full and open chance at 84 percent of the places available is "excluded."

Not surprisingly, it is Professor Bickel who is most eloquent of all. Nothing in the briefs supporting Mr. Bakke's claim is as strong as the argument Bickel put forth in DeFunis. He tells us flatly that it is quite simply wrong to require the employment or the admission to a school or to any other position of unqualified or less qualified persons solely on the basis of their race. When this is done, a cost is paid in loss of efficiency and in injustice... [I]n a society in which men and women expect to succeed by hard work: and to better themselves by making themselves better, it is no trivial moral wrong to proceed systematically to defeat this expectation; the more so as for some groups that do not now benefit from affirmative action programs prejudice has only recently been overcome, and the expectation that members of such groups might rise by merit has just begun to be fully met... [T]o reject an applicant who meets established, realistic, and unchanged qualifications in favor of a less qualified candidate is morally wrong, and in the aggregate, practically disastrous.

Driven by convictions like these, Justice Douglas (in a separate opinion on the merits in DeFunis) reached the conclusion that any admissions program must fail unless it is handled in a "racially neutral way" (his emphasis). Sharing this judgment, and quoting liberally from the Douglas opinion, the California Supreme Court reached the same conclusion: Whatever the processes of admission, they must be racially neutral. Whatever methods and standards are used, they must be "applied without regard to race."

To the average reader, all this may seem fair enough. Why then is it so shocking to the institutions that would be principally affected? The reason is simple, if also painful: the gaps in social, economic, educational, and cultural advantage between racial minorities and the white majority are still so wide that there is no racially neutral process of choice that will produce more than a handful of minority students in our competitive colleges and professional schools. Let us stay with medical schools and blacks alone and look back at 1967-1968, the last year before special admissions began to be significant. In that year there were 735 blacks in medical schools, but 71 percent of them had been admitted by ways that were far from racially neutral: they were at Howard and Meharry, then and now the country's two predominantly black medical schools. Out in the broad white world of a hundred other medical schools, the 211 blacks enrolled in all four classes were only 0.6 percent of the total, though blacks are about 12 percent of the total population. Today, as a consequence of a nation-wide ten-year effort, there are some 3000 blacks, 5 percent of the total, in the mainly white medical schools. It is an extraordinary transformation. And what most close observers believe is that if these same mainly white medical schools were driven back to "racially neutral" admissions, the number of blacks would slide back close to where it was in 1968. A parallel impact would be felt in other professional schools and in selective colleges. The consequences of such a backsliding, both to the aspirations of racial minorities and to the honorable efforts of whites, are mildly described by the word catastrophic. The message would go out, to something like one sixth of our nation, that all the words of a generation since Brown are hollow--that the educational doors are to be neutrally open, but only to an overcrowded staircase on which nearly all of those with a head start will be white.

The reasons for this conclusion are both multiple and simple. First, we must agree that selective college and professional schools do want entering students who are not merely qualified but highly qualified. They have learned that when other things are equal, the applicant with the better academic record and the better test scores is more likely to succeed. Records and scores must be handled with care, and it is easy to make too much or too little of them. It is much less easy to deny the reality they tend to reflect: that developed capacity for certain kinds of analysis, familiarity with certain kinds of knowledge, successful experience of certain kinds of mental effort, and natural exposure to a social environment in which those things are encouraged are all strongly relevant to a person's promise. In America today disadvantaged racial minorities are still greatly underrepresented among those best qualified on these criteria alone. The burden of centuries has not been lifted in the short and stressful decades since Brown. Selective colleges and professional schools admitting students as they admitted them fifteen years ago would soon be nearly lily-white again.

This result is not desired by the California Supreme Court, nor indeed by most of those who have been stirred to the support of DeFunis and Bakke. The most zealous of these supporters usually insist that the need to increase educational opportunities for disadvantaged minority students is a social imperative. Both Justice Douglas and the California Supreme Court have shown such concern, and the latter went so far as to suggest a variety of "racially neutral" activities which it thought might do the job, from building more medical schools to general concern for the disadvantaged of all races. But the California court offered almost no evidence to buttress its suggestions, and on this issue the reply of the university, in its brief before the Supreme Court, is devastating. It demonstrates plainly that at present any method of choice or recruitment which is racially neutral will produce a disproportionate number of white candidates. It shows that as a group whites outnumber nonwhites at all levels of advantage and disadvantage; on any criteria that are truly nonracial they will surely get all but a very few of the places. Moreover, this demonstration conforms entirely with the experience of other selective institutions.

Among those who have worked hardest and longest on this matter, the agreement is overwhelming. If you want to enlarge the numbers of minority students in selective colleges and professional schools you simply must make race a factor in your work. You must target blacks and Hispanics and others in your recruiting: you must assess their promise in the light of the specific disadvantage that their race itself still carries. If you wish to attract well-qualified candidates you must earn a reputation for real accessibility; you must become known as a place that accepts minorities in more than token numbers. You must then spend time and money well beyond your normal standards in helping them survive and succeed. Precisely because it is not yet "racially neutral" to be black in America, a racially neutral standard will not lead to equal opportunity for blacks.

That race must be one factor in fair admissions does not of itself determine how that factor should be weighed, or what process would come closest to fairness at all. Neither can it be asserted that race is the only form of disadvantage that needs special attention. There are whites who deserve special help and blacks who do not. Not everyone would endorse as wise the particular method of affirmative action chosen by the medical faculty at Davis. The university itself now recognizes that it was misleading to describe the program at the beginning as open to all disadvantaged applicants, when in fact its real purpose was to find and enroll the best qualified members of racial minorities. And there is a real distinction between quotas and goals which is worth preserving and which may have been partly obscured at Davis. Goals are targets you set out to meet and perhaps exceed by finding genuinely qualified people, but you are not rigidly bound by them. Certainly quotas have at times been invidious ceilings. They can also be regarded as a number of places open by right without regard to quality; there is a hint of that in some of the pressure-group politics of some blacks and Chicanos in California. The notion of a fixed quota also carries with it a flavor of the absolute that may be inappropriate in a process which otherwise seeks to emphasize the wide variety of considerations taken into account, and to make decisions candidate by candidate, at least when the issue is close. (Indeed, the more one thinks about selective admissions the more one wonders whether it is not due process, rather than equal protection, that should be the final test of fairness.)

But the fact that a distinction is important on other grounds may not make it useful for judges. The word "quota" is offensive because it was animated originally by a desire to exclude. "Goal" is a good word, implying an effort to attract and enroll a needed kind of person. Yet both operationally and constitutionally the distinction between them may be too fine for the Court.

This year Professor Gordon Sabine of the Virginia Polytechnic Institute has reviewed successful programs of special admissions in five selective colleges (public and private, eastern and midwestern). Over a dozen years these institutions together have increased their nonwhite enrollments from about 225 to nearly 2700. Mr. Sabine found that while none of them had rigid quotas either as ceilings or floors, all of them had used broad targets and believed that such targets were essential to their success--to ensure the necessary administrative effort, to permit planning for financial aid budgets, and to produce a sense of real opportunity among applicants. And targets that are met do result in the reduction of the opportunities of other candidates, just as surely as quotas. It is not surprising that Bakke's friends at court appear in the end to be as hostile to one as to the other. Indeed it is not hard to imagine goals or targets more offensive in their real consequences than the procedure at Davis, whatever its proper name.

Yet the difference between quotas and goals remains real, and it was near the heart of the heated debate over the Bakke brief filed for the United States. The first draft of that brief contained an extended and powerful attack on quotas. The government finally decided, I think correctly, that the record does not show clearly just what the Davis procedure was. The government dropped its long discussion of quotas and confined itself to an equally powerful and extensive argument supporting the constitutionality of "minority-sensitive" admissions programs. It expressly avoided "reasonable selected numerical targets for minority admissions." But it also sharply contrasted such targets with "rigid exclusionary quotas," and its eventual view of quotas is not likely to be friendly. In effect the Justice Department's brief constitutes a strong invitation to all selective institutions to place themselves well on the safe side of the fine line separating goals and quotas.

To most of those who believe in making room for minorities in selective institutions, it is not the Davis program in itself that must be saved--it is rather the argument of the California Supreme Court that must not stand. There is force in the university's claim that its method, as now announced and understood, is both forthright and effective, and no one who has close experience of the formidable complexities and costs of any process of selective admission will regard these as trivial advantages. (Justice Douglas, perhaps because he was forty years away from his own direct experience of the matter took a particularly cavalier view of such considerations, although he himself recommended "a separate classification" of minority applications.) Still, there are many successful programs of affirmative action that are different from the one at Davis. What does not exist, in any selective college or professional school, is a successful program of affirmative action which has been arranged in a racially neutral, a truly color-blind, way. Those who believe in racially neutral ways to help racial minorities in selective colleges and professional schools simply cannot have it both ways. Their motives are admirable, but they are demanding the impossible.

The infirmity of the California court's argument goes even further. If affirmative action is required to be racially neutral in the field of admissions, why not also in all remedial work, whether before or after admission? Does the Constitution bar federal programs like that of the National Science Foundation, which has provided millions of dollars to help minorities prepare for medical school admission? Does it forbid what the schools themselves have done to help keep minorities on track, or what law schools, with federal help, have done in summer study programs for minorities interested in the law, or what the American Association of Medical Colleges has done to help members by maintaining a Minority Student Registry? Is it racially un-neutral simply to go looking for blacks if you don't look equally hard at everyone else?

More broadly, there is great relevance in the large set of situations reflected in the federal case now called Adams v. Califano, which has yet to reach the Supreme Court. This case responds to the reality that in public higher education in six southern states there is much that is still separate and unequal. A remedy is clearly needed, and the federal courts have required the Department of Health, Education and Welfare to set guidelines for that remedy. The guidelines issued in July by Secretary Califano are too complex for detailed review, but one aspect of their nature is evident throughout: they are not racially neutral. They reflect the disparity that plainly exists in the present opportunities of blacks and whites in these institutions and they require that explicit attention be given to the needs of both groups. They claim to be fair, but they are not color-blind. The special world of these particular institutions, of course, is one where there is an ample history of past discrimination, and such history has acquired its own meaning in the legal precedents. But it requires no leap of fancy to discern a parallel between what was done actively and explicitly in these cases and what was done passively and tacitly in a general context of racial inequality, throughout our educational system.

A final thought suggests itself as we consider the call for "racial neutrality": the phrase lends itself to nonsensical responses. One, as counsel have noted, would be to draw winners from among the qualified be lot. Another, hypothetically, might have been the development of a pair of equally treated student bodies, white and nonwhite, with openings in racially proportionate numbers. In California such a method might by now have produced minority medical students at a rate of 25 percent of the total. Is it not of some interest that such a program would surely have been thought constitutional at least between 1896 (Plessy) and 1950 (Sweatt)? Solutions like these are defensibly neutral but clearly foolish. So the more one thinks about it, the less it is possible to believe that the way to get beyond the stubborn problem of racism is to be neutral about the realities it has produced.

SO far we may have established the importance of action to increase minority enrollment and we may even have made good our claim that this simply cannot be done in a racially neutral way. But the two hurdles we recognized at the outset remain: Is it not somehow wrong to admit "less qualified" people because of race, and is it not doubly wrong to reserve space for them at the inescapable expense of others in the competition?

Let us begin with the matter of qualification. Here we must deal with two quite different issues, one simple and the other subtle. The simple one is probably also the more important: the friends of affirmative action can and should stipulate their strenuous opposition to the admission of students who will not be able to do the work required for graduation, and whose degree must be either withheld or awarded on a weakened standard.

We should take it for granted that there is no gain to anyone in the graduation of unqualified persons, men or women who will never make good lawyers or doctors or teachers. We should recognize, moreover, that the acceptable floor for entry may, in some measure, and by some measurement, go up over time, at least if these professions remain in very high demand. We may well doubt that there are more great lawyers now than in the age of Hughes and Holmes, or Marshall and Webster, but we should not be surprised if there are more good ones; and a good one is much better, for his clients and for the profession, than one who is not good. The case against producing low-grade physicians and surgeons is at least as strong.

So it becomes a matter of decisive importance that if minority candidates are to have special consideration, they must first be qualified for admission. This is a test which the litigating institutions have accepted and claim to meet. But honesty compels the recognition that however it may be now at the Davis Medical School, and however it may have been at the Washington Law School in 1971, there have been times and places in the last decade in which a close examination of the qualifications and performance of some minority students would have been embarrassing. On this point we need not question motive; if some admissions and degree decisions may have been cynically patronizing, others were well-intentioned and merely naive. Yet we know from the eloquent protests of such black leaders as Kenneth Clark and Roy Wilkins that an insulting double standard can exist, and also that it is as repellent to blacks as it is offensive to the general sense of justice.

But what is most important is that on the limited evidence we have there is much less of this sort of thing now than there was in the first heat of awakened concern (and perhaps less at any time than courthouse or hospital rumors suggest). While both the court record and the judicial precedents are silent on the point, the weight of the evidence available elsewhere suggests that a steadily growing percentage of the men and women of minority origin who are admitted to selective colleges, law schools, medical schools, and graduate schools are "making it." Schools are choosing with more skill and giving better support to those who enroll. Some fail or drop out, as some (but relatively fewer) whites do. But the rates of minority attrition are now reported to be roughly comparable to the failure and dropout rate of white males some thirty or forty years ago. Middle-aged men who received their own professional training at about that time can fairly be asked to consider whether a class with records as good as their own should be considered as underqualified.

I labor this point because both logic and sentiment suggest that it may be central to the thinking of a great many Americans, however little it may appear in records and arguments. No one is arguing for the admission of the unqualified, and there is no finding in Bakke that such admissions have occurred. Indeed, there is not in Bakke any serious legal challenge to the generally accepted proposition that the elemental decision on whether a candidate is qualified for medical school must be left to the professional judgment of faculties and their agents.

So the issue actually presented to the Supreme Court is also the issue presented as a matter of real choice in our whole system of higher education. The question is not, as emotion so often suggests, whether we should push forward unqualified people. The question is much more subtle: Among the qualified, how shall we choose?

The test, as Bakke and his many friends see it, is comparative. Their claim, asserted in varying temper and emphasis, is triple: that their man is more qualified than some who were preferred at least in part because of race; that in any general process of admission the more qualified should be preferred to the less qualified; and that, above all, in making such choices between individuals the Constitution requires color blindness.

We are near the center of the matter. Let us recognize the reality: in affirmative action to admit more members of racial minorities, there are and will be measurable differences, among those admitted between the average test scores and academic records of minorities and those of whites. The scores and records of blacks and other minorities are such that this result is inescapable, at least for the present. A similar relative weakness in test scores has existed in other groups in the past and has been gradually overcome. There is also a clear relation between low scores and low socio-economic status, which hits racial minorities with particular force. Of course not all members of racial minorities have low scores or poor records, just as not all are culturally or economically disadvantaged. There is indeed a growing pool of applicants who are black or brown and bright by any test. Nonetheless, the average scores for most racial minorities are lower than the comparable scores for whites.

But does it follow, as Professor Bickel seems to have thought, that to admit such lower-scoring minority applicants is "morally wrong" and "practically disastrous"? Does a difference in such "established, realistic, and unchanged qualifications" mean that those who fall short on these measurements are "less qualified"? Or does it mean only that when one prefers a candidate who is weaker in such relatively measurable qualifications, one must have some good and solid reason? Race for a moment aside, the latter standard is clearly the right one. Sensitive admissions officers agree that while scores and records can tell you a lot at the upper and lower margins, they give little guidance in the hard cases of choice among those who are academically qualified but not extraordinary.

There is much confusion about scores and records, and their full meaning is not understood by anyone. But among the recognized experts, both friendly and critical, there is something close to agreement that they do not constitute an absolute guide to later performance. To read their portent is still an art and not a science. It is quite true that at the heights and depths they are relatively reliable predictors, at least of academic performance, and that is why the experienced admissions officer will need unusual reasons to deny those near the top or admit those near the bottom on these measurements. To read these numbers may be an art, but that does not make them harder to use than letters of recommendation or interviews. It is not the perfection of the tests and records so much as the expensive imperfection of all other methods that has given them weight, especially in professional schools.

Closely examined, neither records nor test scores nor any criterion of admission whatever can be accurately characterized by Professor Bickel's heavy phrase; there are no such things as "established, realistic, and unchanged qualifications." Even where records and tests have been used most mechanically it has been only because of their relative advantage; among thoughtful admissions officers it has always been agreed that when time permitted and educational need required, it was right to look at other things. I put the point most gently. Especially at the undergraduate level, most admissions officers will say that mechanical reliance on any such measurement is what would be "morally wrong" and "practically disastrous." Recognizing their fallibility, knowing they will make mistakes and commit unfairness, they nonetheless reach out to try to identify promise and quality of all sorts. They look at other things, not only for help at the margins, but because they think these other things are critical to the quality of the student body as a whole.

Now we are right at the heart of it. Is race itself permissibly such another thing to look at? If I am a qualified black (in the basic sense already discussed), may not my blackness perhaps make me more qualified? Have I had something extra to go though? If I score 550 where a middle-class white scores 650, have I shown as much or more of what is so critical to success in learning--a determination to learn? Can I bring a different and needed perspective? Is there a special need for people like me in courts and hospitals and on college faculties? May the profession itself be better if more people of my race are in it? Can my presence and participation as a student enlarge the educational experience of others? Does the whole society somehow have a need for me in this profession that it simply does not have, today, for one more white? If the answer to these questions, or some of them, is yes, are not my qualifications by that much improved, and improved precisely by my blackness? If so, at some point it becomes right that I should be admitted; I am not "less qualified" when all things are considered.

I put this case by questions because I wish to emphasize that it is not necessary here to be dogmatic in response to dogma. It is quite enough to argue that it would be a dangerous and sweeping business, in the present state of our knowledge and experience, to answer all these questions in the negative. Yet that is precisely what Professor Bickel's argument and the opinion of the California court would require.

Surely one may hope that the Supreme Court will reject such certainty, expressed as it was by men admittedly inexpert in judging the needs of California medicine. It is not from exposure to the social reality of medicine and health care in that state, but only from an inverse reading of what has been said and done judicially to protect racial minorities, that one can reach the California court's conclusion. (This inversion gives a through-the-looking-glass quality to many of the briefs on both sides; Bakke's friends in particular constantly remind the Supreme Court of things it said when its object was precisely to prevent the exclusion of minorities.)

To be a member of a disadvantaged racial minority may not in itself be a positive qualification for entry into medical school in California. But how can the California court be so sure? And if it is not so sure, how can it say that the Constitution compels racial neutrality? Yet if racial neutrality must be required of the medical school at Davis, must it not be required everywhere else in public, and maybe also private, higher education? Would it not be necessary also in all forms of affirmative action all through our society? Is this what Allan Bakke's grievance requires of the Constitution?

BUT what about quotas, or even goals? Are they not arbitrary and discriminatory? Certainly they could be, if unqualified candidates were admitted or if their numbers went beyond the compelling needs of the profession or the state. There is no such claim in Bakke; at Davis about one sixth of the places were held for qualified members of minorities, who make up about a quarter of the state's population. Even if it really was the minority entrants who beat Bakke out, and even though his scores were better than theirs, still, as long as one grants that to be black or Chicano can be in itself a qualification, the program does not seem excessive. Indeed, it is not the sixteen places that are denounced by Bakke and his supporters--it is the award of any admission at all on grounds even partly related to race. It is not the size of the space reserved, or even its existence, that is the ultimate basis of the invocation of "equal protection." What Bakke and his friends assert is that race must play no part in selective admissions, and they may feel themselves forced to this argument because no other will justify their appeal for constitutional protection.

Thus Bakke and the California court are asserting an absolute claim when what we really face here is conflicting values which have to be compared in weight. There can be no doubt at all that if the number of nonwhites goes up in selective schools and colleges, the number of whites will go down. Some will be rejected who would otherwise have been accepted. But what needs attention is the magnitude of this consequence.

Set Bakke himself to one side for a moment and consider the net damage to disappointed white applicants, as a group, arising from the nationwide admission of racial minorities to medical schools. (This is a reasonable course even in considering Bakke as an individual, because he applied not only to Davis, with its relatively large and rigid goal for minorities, but to a number of other medical schools with other kinds of programs. He wants to be a doctor. not a Davis graduate.) In 1975-1976, there were just under 35,000 white applicants for medical school, and 22,000 of them were not accepted. In the same year the total number of minority candidates accepted and enrolled was 1400. If not one minority candidate had been accepted, the entering classes throughout the country could have accommodated less than 7 percent of the disappointed whites. In this raw statistical sense, at least 93 percent of the majority's problem lies in something else. The most important "something else" is a simple excess of demand over supply. More people of all sorts want to be doctors than ever before, and for powerful reasons. In the last ten years the number of formal applicants has increased by 130 percent, while the number of places available has increased by only 66 percent. And these figures undoubtedly understate the change, because as the pressure for admission grows, the number of those who select themselves out of the competition and do not apply must be growing. This is no new phenomenon; even in the 1950s as much as one third of any given freshman class at Harvard College announced a desire to enter medicine, and it was one of the healthy functions of the undergraduate course in organic chemistry to reduce this percentage and thus spare some of this talent for other pursuits. The doctor is respected, well paid, and helpful to mankind, why should not growing numbers of ambitious and able young people seek to follow this high calling? And since it is a stubborn fact that the country cannot and will not create medical schools for all, there is a crunch in the admissions office. In this situation there can be no absolute right of admission.

Most of the competition the white males face comes from other white males, but it is interesting that even if one persists in pitting white males against others, their most dangerous rivals, quantitatively, are not specially admitted black or Hispanic males, but women of all races. Since 1968 the number of women entering medical schools has risen from 8 percent to 25 percent of the total. A parallel increase has occurred in law schools. No constitutional issue is raised by this dramatic change, which is probably not at an end; the women admitted have had generally competitive records on the conventional measures. But their new presence is certainly a large part of the social reality which can create, at least temporarily, a sense of some frustration among ambitious white males. The 4000 young women who have entered medical school this year have a lot more to do with the rejection of men like Bakke than any special admissions program for minorities.

But let us return to Bakke: it is not statistics alone that suggest the fault assignable to minority admissions programs in his case is small. It is evident in the history of his effort, if not in the appellate arguments, that his central trouble was his age. He was ten years older than the ordinary candidate for admission. Medical education is a prolonged affair at best, and the profession has been troubled for years by the fact that even if a student proceeds promptly along all the usual tracks--college, medical school, internship, and often specialty boards--he or she can be well in the thirties before being fully prepared for practice. Bakke would have been over forty at best, and rightly or wrongly this fact was a considerable handicap to him.

Conversely, what is most impressive about Bakke is not his scores but his determination. It seems at least possible, from the admittedly fragmentary evidence, that the authorities at Davis would have made a better judgment to admit Allan Bakke precisely because he so clearly cared so much; moreover, his health and energy levels appear to be high enough to justify some flexibility in considering his age. And it can be argued today that whether he wins or loses his legal case, he has made sacrifices in fighting it which somehow ought to win for him even now what he has wanted most in life--a chance to be a doctor.

Both Bakke's age and his determination are largely absent from the legal arguments. Constitutionally they do not seem to count. But they are what really mattered in his case. Together they are a powerful concrete demonstration of the difficulty of the art of choice among those qualified.

Thus both general and specific evidence, not reached by the legal arguments, combine to suggest that any hurt sustained by whites in general or Bakke in particular is only doubtfully and marginally related to special admission of minorities. Moreover, there is no way of avoiding some such displacement if in fact there are to be more nonwhites in medical schools. Since everyone except perhaps Bakke himself appears to agree that more qualified nonwhites are in fact needed, there is a flavor of Catch-22 about the arguments of his friends and the California court. They want more blacks, and that means fewer whites, but any program that produces more blacks by considering blackness in any way is by that very fact unconstitutionally unfair! Can this kind of thinking lead to sound constitutional law?

GIVEN the magnitude of the issues presented, it is a matter of more than technical interest that the path from Bakke's real situation to the racial cause asserted in court is so long and tenuous. As lawyers on both sides have noted, the record is thin. From what is formally before the Supreme Court there is no way of knowing whether the Davis program has truly embodied all the right reasons and good intentions expressed in Professor Mishkin's brilliant brief for the university (and put forward more generally in this article), no way of knowing whether Bakke has suffered injury from it, and certainly no way of supporting the claim of the California Supreme Court that there are, or may be, racially neutral paths to the desired and desirable result.

As it considers its judgment, therefore, the Court may wish to compare the record before it with the situation faced by nine other justices twenty-five years ago, as they began consideration of the cases eventually decided, by a somewhat different nine, two years later in the classic case of Brown. First, it may note that the case of Brown against Topeka was one of five decided at once, cases from as many school districts in different parts of the South and border regions. Then it may note the long line of directly relevant cases painfully argued along the way, bearing the names of individuals whose situation was always clearly and directly connected to the discriminatory practice under attack: Murray in Maryland (1936); Gaines in Missouri (1938); Sipuel in Oklahoma (1948); Sweatt in Texas; and McLaurin in Oklahoma (1950). When the Supreme Court in Brown decided that legally segregated public schools would not do, it had considered out-of-state alternative small segregated professional schools, admission with physical isolation, and five quite different public school situations. It had required argument and re-argument as it gradually prepared itself to judge. It had before it a legal record almost twenty years deep and as wide as segregation itself. And in a still wider sense it was ready to confront the overwhelming evidence of more than half a century that separate but equal schooling, the means of equal protection authorized by Plessy v. Ferguson in 1896, was a fraud. But, as the Brown opinion shows, the Court was acting at a time when constitutional analysis was thin. The governing case was still Plessy, and it had not been a fertile source of thoughtful constitutional law.

Today the situation is reversed. The Court has in its purview literally thousands of pages of abstract constitutional analysis spurred by Marco DeFunis and Allan Bakke. At the same time, at least in the strict sense of what is in the record, it is faced by an almost empty slate. It is not only pragmatic laymen who must ask if this is a base strong enough to sustain a decision of such transcendent importance, or whether there should not be a much longer and wider record before special admissions are judged.

But just once more, what of the threat of goals or quotas? Let it be granted that today special admissions present no serious threat to whites as a group--and still less to any minority within that majority. What of the principle? What if, one day, every self-defined ethnic or cultural minority should demand its own quota? Cannot all of us be defined as members of some such minority? And what if, then, the individual opportunities open to every American should be compressed within some narrow racial or ethnic percentage? While no one can say that this is happening today, the possibility clearly worries many.

But quite aside from the compelling and constitutionally recognized difference between being nonwhite and belonging to any other group whatever, there is no constitutional warrant for preventing a hypothetical future hazard at the expense of present urgent needs. Circumstances do change the balance of forces, and a marginal preference which is fair and perhaps even required in one context could, in another, be a flagrant denial of equal protection. A decision to allow what is reasonable today is not a decision to permit abuse tomorrow, not "while this Court sits."

STEPPING back from the Bakke case, and from the questions directly presented to the Court, we can see that the forces at work here are vast, complex, and slow. The most persistent of all the attractive illusions in our country may be that racism can be ended by one single blow. Another of our cherished notions is that everyone can have what he deserves or even what he wants, especially in the field of education. Precisely because our dream is of equal chances for all, we have found it hard to recognize that in our marvelously varied population there is enormous diversity in advantage and disadvantage of all sorts.

Our colleges and universities in their own extraordinary variety--unique in the world--reflect in a hundred different ways not only these differences among us, but different ways of serving the twin ideals of equity and excellence. The autonomy defended for Dartmouth by Daniel Webster has been in constructive contest with the claims of the state through all our history. On balance, the record does not support a judgment that our colleges and universities would have done better if the state had interfered with them more.

Through most of that history, most institutions of higher learning, like the rest of America, have been blatantly racist; the exceptions have been as few as they have been honorable. For only about ten years out of our two centuries as a nation has there been a serious nationwide attempt to make room in the higher reaches of this world for those who have been held back so long. The results so far are uncertain, but the achievement is real, while the asserted dangers are hypothetical. If the process is not yet as open and skillful as it should be, it is much more open and skillful than it was. Faculties still insist on their responsibilities, but they are more and more aware that there are constituencies all around them that have a right to an accounting. Their efforts to meet competing claims do not proceed in a vacuum. The whole process is incomparably broader than the narrow chains of legal reasoning which are offered to the Court, and members of the white majority are hardly powerless in that process. Whatever is selective will always be imperfectly equitable, but in the absence of a persuasive showing of any grave or general damage to basic constitutional rights, it would seem genuinely tragic to block this great new effort at racial fairness just as it begins.

It would be almost as bad to drive it underground. There are those who believe that the best way of dealing with the California opinion is to pretend to accept it, and to achieve real minority presence by assertedly neutral means. The process of final choice in selective institutions is always complex and subtle, and for understandable reasons admissions officers are practiced in husbanding their candor. So it is not at all unlikely that in the pursuit of their own convictions they could find ways of preferring minority candidates while stoutly denying the preference. A more destructive subterfuge is hard to imagine, or one more likely to clog the courts with an unmanageable mass of complex complaints.

I repeat that this effort is young, difficult, and hopeful. What most needs emphasis is its youth. In the lives of the races, the professions, and the universities, ten years are but a moment. Some of those who defend affirmative action sometimes speak as if it could be a relatively short matter. If we measure in generations, they may be right. It seems fair to hope that we can have made decisive progress by the time the children of today's children are of college age. But that single generation takes us well beyond the year 2000. For the rest of the working lives of those who are now concerned with these matters, persistence will be the name of the game.

No one can deny that special admissions programs, even at their best, have costs and dangers; the grievances of Allan Bakke and others may be overstated and even misdirected, but they are deeply felt. Racial preference can arouse racial antagonism, and the general rule that judgment should be based on personal merit alone has its high claims. Still, it seems clear that to take race into account today is better than to let the doors swing almost shut because of the head start of others. We must hope and believe that in the long run our effort for equal opportunity will put the need for special programs behind us. In that deep sense there is no conflict between special admissions and every other form of action to help the disadvantaged, white and nonwhite alike. But what special admissions, and only special admissions, can do today is to make access to the learned professions a reality for nonwhites. To get past racism, we must here take account of race. There is no other present way. In the words of Alexander Heard of Vanderbilt, "To treat our black students equally, we have to treat them differently."

It is not for a layman to tell judges how to fit these realities to the Constitution. In its brief to the Supreme Court, the University of California concluded with an appeal to the authority of Paul Freund, while the private universities turned to Daniel Webster. My own last thought is this: It is right to ask of the Court in this case that it should find its way to a result which somehow respects the reality that the world of American higher learning is at last embarked upon a long-delayed and indispensable effort to do its part to deal with our most deeply rooted social evil, one which was the proximate cause of the Fourteenth Amendment itself. To read the words of that amendment in ways that would cripple that effort would seem a cruel irony. What is worse, it would be to assert that in the learned professions the equal protection clause somehow requires the perpetuation of de facto white supremacy. Worst of all, it would place the great moral authority of the Court on the wrong side of a fundamental issue, on which it has a hard-won right to speak for the national conscience.

In asking whether the equal protection clause really requires all this, I have found myself rereading two of the most famous of all judicial comments on the Constitution--what it is and what it permits. They both came from the pen of John Marshall in 1819.

In considering this question, then, we must never forget, that it is a constitution we are expounding.

And later in the same opinion:

Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, but consist with the letter and spirit of the constitution, are constitutional.

If the Constitution is read in this grand manner, can it truly be unconstitutional to make room for qualified members of racial minorities on the staircase to the professions?

Copyright 1977 by McGeorge Bundy. All rights reserved.