Regents of the University of California v. Bakke

Justice Stevens joined the Court's result, but joined by Chief Justice Burger and Justices Stewart and Rehnquist, Justice Stevens agreed that Bakke must be admitted but would have decided the case entirely under Title VI. In his view, the statute's plain language forbids excluding any person from a federally funded program on the ground of race, and Davis admittedly excluded Bakke from the special-admissions seats because he was white.

Justice Stevens rejected the view that Title VI merely duplicated constitutional doctrine. Congress responded to segregation and discrimination against Black Americans by using broad language that protects every individual, including white applicants, from exclusion because of race.

He also concluded that Bakke could maintain a private action for declaratory and injunctive relief under Title VI. Bakke sought admission, not a cutoff of federal funds, so his suit did not improperly bypass the administrative procedures governing agency termination of funding.

Justice Stevens believed the Court should not address the broad constitutional question whether race may ever be considered in admissions. He read the operative lower-court order as directed only to Bakke's application and concluded that no live injunction prohibited future race-conscious admissions policies.

Justice Brennan dissented, arguing that joined by Justices White, Marshall, and Blackmun, Justice Brennan agreed that Davis could consider race in future admissions, but would have upheld the particular 16-seat program and reversed the judgment ordering Bakke admitted. He maintained that Title VI allows race-conscious measures to remedy the continuing effects of racial discrimination to the same extent that the Constitution permits them.

Justice Brennan rejected Justice Powell's premise that race-conscious remedial action requires a prior judicial, legislative, or administrative finding that the specific institution committed discrimination. In his view, voluntary efforts to overcome substantial and chronic minority underrepresentation are constitutional when there is a sound basis to conclude that past discrimination has impeded minority access.

The appropriate review, he argued, was strict and searching but not automatically fatal. A remedial racial classification must serve important governmental objectives, be substantially related to those objectives, and avoid stigmatizing a racial group or forcing a politically powerless group to bear the program's burden.

Davis had ample evidence that Black, Chicano, and other minority groups were gravely underrepresented in medicine because of the Nation's long history of discrimination in education and professional life. The program admitted applicants qualified to study medicine, imposed no stigma on either the beneficiaries or Bakke, and was reasonably related to increasing minority access to medical education.

Justice Brennan regarded the distinction between Davis's openly fixed number of seats and Harvard's more flexible admissions process as constitutionally insubstantial. Both systems necessarily give some preference to qualified minority applicants; in his view, the Constitution did not privilege an opaque preference over a transparent one.

Justice White separately argued that Title VI does not create a private cause of action. Congress carefully created private remedies elsewhere in the Civil Rights Act but omitted one from Title VI, which instead established an administrative enforcement scheme involving agency regulations, voluntary compliance efforts, hearings, presidential approval, congressional reporting, and judicial review of funding terminations.

Allowing private suits under Title VI, he reasoned, would let litigants circumvent the enforcement procedures Congress deliberately designed. Although he joined the Brennan opinion on the merits, he believed the Court should have resolved this threshold jurisdictional question rather than simply assuming a private action existed.

Justice Marshall emphasized the history of slavery, segregation, exclusion from education, and continued inequality experienced by Black Americans. In his view, the Nation's history showed that discrimination against Black people was class-based and pervasive, so a class-conscious remedy was both necessary and consistent with the Fourteenth Amendment's original purpose.

He rejected the idea that a formally colorblind rule could prevent government from addressing the accumulated effects of centuries of official and private discrimination. The Equal Protection Clause, adopted to secure genuine equality after slavery, should not be turned into a barrier against efforts to open professional opportunities long denied to Black Americans.

Justice Marshall therefore would have upheld Davis's program as a permissible effort to bring Black Americans and other historically excluded minorities into the medical profession.

Justice Blackmun stressed the severe underrepresentation of minority physicians, lawyers, and students in professional schools. He accepted that Bakke, who was not personally responsible for discrimination, suffered a real loss, but observed that scarce seats necessarily require universities to reject many qualified applicants for a wide variety of reasons.

He argued that admissions judgments primarily belong to educators, not judges. Universities routinely prefer applicants based on athletic ability, geographic background, alumni connections, wealth, or other traits; race-conscious efforts to overcome entrenched exclusion should not be singled out as constitutionally forbidden when they are carefully limited.

Justice Blackmun saw little practical or constitutional difference between Davis's candid two-track plan and Harvard's individualized process. He would have upheld Davis's plan as a permissible, if imperfect, affirmative-action measure, reasoning that the Nation must take account of race before it can move beyond racism.