The Major Bakke Holdings
A) Admissions criteria that use race as a definite and exclusive basis for an admission decision violate the Equal Protection Clause of the Fourteenth Amendment as well as Title VI of the Civil Rights Act of 1964.
The SCOTUS held in Bakke that the language of § 601 (of The Civil Rights Act of 1964: “Title VI”), 78 Stat. 252, like that of the Equal Protection Clause, is “majestic in its sweep”:
“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 438 U.S. at 281-287.
The Bakke Court also explained the interplay of Title VI and the Fourteenth Amendment by explaining that Title VI simply implements the Constitutional prohibition as to the award of Federal Financial Assistance (“i.e., “grants”):
“Basically, there is a constitutional restriction against discrimination in the use of federal funds; and title VI simply spells out the procedure to be used in enforcing that restriction.” 438 U.S. at 281-287.
Note #4: Just for academic completeness, let me explain here the claims made against UNC which go beyond the Title VI claim used to attack UC Davis’ and Harvard’s race-preferential admission practices.
B) The Fourteenth Amendment “Equal Protection Clause” (Article 1 of the Amendment):
“…nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Note #5: The SCOTUS has only approved of the use of race by the federal government under the Equal Protection “Component” of the Fifth Amendment to the U.S. Constitution for three purposes:
1) to protect national security (in upholding the internment of people of Japanese ancestry during WWII): Korematsu v. United States, 323 U.S. 214 (1944) [the first case to apply what the SCOTUS eventually fine-tuned and called the “strict scrutiny” standard under a Constitutional “Equal Protection” analysis]. The “strict scrutiny” standard is at the center of the legal controversies in the Harvard and UNC cases:
“It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspected. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.” (See paragraph 2 of the “Majority” Opinion in Korematsu.)
While the Fifth Amendment to the United States Constitution contains no Equal Protection “Clause” or even Equal Protection language, the SCOTUS has nonetheless read an Equal Protection “Component” into the Due Process Clause of the Fifth Amendment to prohibit federal action based on race in the same way the Equal Protection Clause of the Fourteenth Amendment prohibits the states from using race in state decision-making. As a result, SCOTUS’ modern approach to Fifth Amendment Equal Protection claims has always been precisely the same as to Equal Protection claims under the Fourteenth Amendment. See, e.g., Schlesinger v. Ballard, 419 U. S. 498 (1975).
Thus, SCOTUS cites Equal Protection case law interchangeably from case decisions interpreting the Fifth Amendment Equal Protection “Component” to cases interpreting the Fourteenth Amendment Equal Protection “Clause.” Both the “Component” and the “Clause” get to the same legal result.2.) to allow a remedy for racial discrimination: Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995) [Adarand was the SCOTUS case decision which held specifically that courts must analyze racial classifications the federal government imposes under the Equal Protection “Component” using the “strict scrutiny” legal standard, the most stringent level of review which requires that racial classifications both (a) further “compelling governmental interests,” and (b) also be “narrowly tailored.”]
“The decision here makes explicit that federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest.” 515 U.S. at 227-231.
The SCOTUS’ Adarand decision also recognized that racial preferences were appropriate to remedy past unlawful discrimination:
“It is not true that strict scrutiny is strict in theory, but fatal in fact. Government is not disqualified from acting in response to the unhappy persistence of both the practice and the lingering effects of racial discrimination against minority groups in this country. When race-based action is necessary to further a compelling interest, such action is within constitutional constraints if it satisfies the “narrow tailoring” test set out in this Court’s previous cases. 515 U.S. at 235-237.
But for this holding, it would be unclear that courts, federal agencies and governmental employers could remedy unlawful race discrimination with remedial orders requiring, for example, financial payments to Black victims of unlawful race discrimination or orders requiring employers to hire African Americans, Whites, Hispanics, etc., when those employers have previously unlawfully neglected or refused to do so.
Note #6: The Harvard and UNC case decisions turn on those two critical legal elements of proof both Universities must prove up: that their race-based admission preferences furthered (1) “compelling interests,” AND (2) that those race-based practices were “narrowly tailored” to avoid the use of race in decision-making if possible, or to at least reduce the use of race so much as possible consistent with achieving the University’s “compelling interest.”
3) The third SCOTUS allowance to allow race-based practices consistent with the Fourteenth Amendment’s Equal Protection Clause/Title VI applies to institutions of higher learning to further their compelling interest in diversity to further their educational objectives, and if those race-based practices are “narrowly tailored.” [This is the Bakke, Gratz, Grutter, Fisher I and Fisher II line of university and college race-based admission preference case decisions referenced above and discussed below.]
C) 42 U.S.C. Section 1981 (Section 1 of the Civil Rights Act of 1866):
“All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.”
D) 42 U.S.C. Section 1983 (Section 1 of the Ku Klux Klan Act of 1981, also known as the Civil Rights Act of 1871):
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.”
So, Section 1981 was designed to allow Black Americans after the Civil War to make and enforce contracts in the same fashion as Whites. Section 1983 merely provides remedies for violations of federal and state laws, including Constitutional rights violations, accomplished under the “color of state action.”
E.) Bakke opened the door to so far 45 years of racial considerations in admission decisions in higher education:
“Affirmative action programs that take race into account can continue to play a role in the college admissions process, since creating a diverse classroom environment is a compelling state interest under the Fourteenth Amendment. State universities go too far, however, when they set a certain quota for the number of minority students who enroll.”
F) Title VI proscribes only those racial classifications that would violate the Equal Protection Clause if employed by a State or its agencies. 438 U. S. at 281-287 and 438 U. S. at 328-355. (So, Title VI’s prohibitions on race discrimination in federal grants mirrors the Constitutional prohibition on the use of race in state government decision-making and adds nothing more, but nothing less).
So, Harvard will be judged by Fourteenth Amendment standards even though there is no “state action” (since it is a private college with no state action requiring the college to take “race” into account in its admissions process).
G) “Racial and ethnic classifications of any sort are inherently suspect and call for the most exacting judicial scrutiny. While the goal of achieving a diverse student body is sufficiently compelling to justify consideration of race in admissions decisions under some circumstances, U.C. Davis’ special admissions program, which forecloses consideration to persons like Mr. Bakke, is unnecessary to the achievement of this compelling goal, and therefore invalid under the Equal Protection Clause.” 438 U. S. at 287-320.
H) Since UC Davis could not satisfy its burden to prove that Allan Bakke would not have been admitted even if there had been no Special Admissions Program, he must be admitted. 438 U. S. at 320. So, Allan Bakke won and was admitted to the UC Davis Medical School.
I) Racial classifications call for strict judicial scrutiny. Nonetheless, the purpose of overcoming substantial, chronic minority underrepresentation in the medical profession is sufficiently important to justify UC Davis’ remedial use of race. Thus, the judgment below must be reversed in that it prohibits race from being used as a factor in university admissions. 438 U. S. at 355-379.
Since 1978, SCOTUS has on four subsequent occasions confirmed the Bakke special permission to discriminate in favor of African Americans in admissions in institutions of higher education while fine-tuning those rules of permission for those Universities and Colleges that wished to undertake race-preferential admissions. However, one of those case decisions, like Bakke (which started the admissions preference parade) also struck the at-issue preference down even while providing guidance to universities and colleges as to how to accomplish them correctly and consistent with the requirements of the Equal Protection Clause.