Page 38 - FDCC Insights Spring 2022

affirmative action and was brought before the Court thirteen years after the establishment of affirmative actionin1965.11 WhentheCourtconsideredBakke,mediaoutletsreferredtothecase“asthemostimportant civil-rights case since Brown v. Board of Education.”12 After hearing oral arguments, the Court issued “six different opinions, a judicial rarity.”13 The ultimate decision of the Court “came down to one man: Justice Lewis F. Powell Jr.”14
In Bakke, a white male challenged the affirmative action admissions policy at UC Davis Medical School after he unsuccessfully attempted to gain admission into the university.15 As discussed by Professor Deo, in Bakke, Justice Powell “confirmed that strict scrutiny was the relevant standard of review for affirmative action cases [and] that in any equal protection challenge involving race, courts should conduct a two-pronged analysis to determine (1) whether there was a compelling state interest for the policy, and (2) whether the policy at issue was narrowly tailored to fit that interest.” Based on that rule of law, Justice Powell found in favor of the white male challenging the policy.16 Led by Justice Powell, the Court reasoned that although ensuring educational diversity satisfied a compelling state interest, the university’s policy “was not sufficiently tailored to satisfy the second prong of strict scrutiny.”17
About a decade before Bakke, “the Medical School of the University of California at Davis opened in 1968 with an entering class of 50 students. In 1971, the size of the entering class was increased to 100 students []. No admissions program for disadvantaged or minority students existed when the school opened, and the first- class contained three Asians but no blacks, no Mexican-Americans, and no American Indians.”18 As a result, the University developed a “special admissions program to increase the representation of ‘disadvantaged’ students in each Medical School class. The special program consisted of a separate admissions system operating in coordination with the regular admissions process.”19 “On the 1973 application form, candidates were asked to indicate whether they wished to be considered as ‘economically and/or educationally disadvantaged’ applicants; on the 1974 form the question was whether they wished to be considered as members of a ‘minority group,’ which the Medical School apparently viewed as ‘Blacks,’ ‘Chicanos,’ ‘Asians,’ and ‘American Indians.’ If these questions were answered affirmatively, the application was forwarded to the special admissions committee.”20 Justice Powell reasoned that this process was not sufficiently tailored to ensure educational diversity.21 Interestingly, as noted by Deo, Justice Powell “positively cited and appended Harvard University’s admissions plan, which recognized racial diversity (among other criteria) as [a bonus] or ‘plus factor’ for applicants, suggesting other universities could follow suit.”22 Justice Powell made this assertion, not realizing that Harvard’s policies would be before the Supreme Court fifty years later
11 Adam Harris, This is the End of Affirmative Action, The Atlantic, https://www.theatlantic.com/magazine/ archive/2021/09/the-end-of-affirmative-action/619488/ (last visited March 7, 2022).
12 Id.
13 Id.
14 Id.
15 Deo, supra note 10.
16 Id.
17 Id; see also Bakke, 438 U.S. 265, 360 (1978).
18 Bakke, 438 U.S. 265, 272 (1978).
19 Id at 274.
20 Id.
21 Id.
22 Id. at 360.
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