Affirmative Action

Ball, Howard. The Bakke Case, (University Press of Kansas, Lawrence: 2000)

Ball, Howard. The Bakke Case, (University Press of Kansas, Lawrence: 2000)Reviewed by: Erik Rankin

Racism in America has received the most recent press through the use ofAffirmative Action. Affirmative Action has come under fire in recent yearsin many different areas. Higher education has been once such area, andnumerous cases have come forward to argue against the validity ofAffirmative Action. Can the constitution be interpreted in a way thatshows Affirmative Action is unconstitutional? The Supreme Court has hadthe duty to determine the constitutionality of Affirmative Action innumerous landmark court cases. Each court case has moved the countrycloser to a definitive answer to the constitionality of Affirmative Actionin America.

The Bakke Case by Howard Ball outlined one of the most significant SupremeCourt cases on Affirmative Action. Ball gave a very legalistic descriptionof the interworkings of this historic case. He first gave an insightfuldescription of the state of racial affairs in higher education. Ball wasable to give the pros and cons of Affirmative Action and the social andpolitical issues that accompany them. This opening was rather brief andcould have been slightly more informative. The transition to the specificcourt cases was also abrupt, but the case descriptions were to make up fortheir shortcomings.

Ball prefaced the Bakke court case with DeFunis v. Odegaard. This casepitted a student that was applying for admission to the University ofWashington School of Law against its admission standards. The Universityof Washington had set aside 16 percent of the places in its enteringclasses exclusively for members of racial minorities. All applicants werescreened and categorized by race. Minority applicants were then admittedto the school by having standards that were lower the majoritystudents. Marco DeFunis was denied admittance to the University on twoseparate occasions during the time when this Affirmative Action policy wasenforced. DeFunis then believed that he had been discriminated against dueto his race. He met each qualification that the University had in placebut was repeatedly denied. Claiming that he had been deprived of hisconstitutional right to the equal protection of the laws, DeFunischallenged Affirmative Action.

The case first hit the lower courts where DeFunis won and was admitted tothe law school. The school appealed the decision and was able to have itoverturned but was later met with a stay. This allowed DeFunis to remainin school while he continued the process of the courts. The caseeventually made it the Supreme Court where the answer on theconstitutionality of Affirmative Action was avoided. The court found thecase to be moot because DeFunis was ready to graduate. This inability toanswer showed the fear of the Supreme Court to tackle the issue. Byfinding this case moot the Supreme Court only delayed the inevitable ondefining the Affirmative Action issue.

Following the DeFunis case another case was to begin shortly inCalifornia. This case was to involve Allen Bakke. Bakke was an incredibleman that did time in the military and had gone on to work for NASA. AtNASA Bakke was an engineer with promise and a very bright future ahead ofhim. Bakke however felt that his calling was in the medical field. Hedecides to enroll in the University of California- Davis Medical School atthe ripe old age of 32. Bakke had all of the qualifications it took toenroll at the medical school but was denied access. This denial was mostlydue to the age of Bakke rather than his skin color. Bakke however wasinformed differently by an assistant in the admissions office at thecollege in regards to his admissions. The assistant suggested that Bakkeshould reapply early and may have been discriminated against due to hisskin color. I found this part of the book to be a section of the bookwhere the author actually offered his own opinion on an aspect of thecase. Ball called this admissions assistant "unprofessional" but wasclearly looking out for the welfare of Bakke. Bakke did proceed to offer achallenge in his admissions by challenging the University and its admissionpolicies.

Bakke argued that the University and its admission policies were a case ofreverse discrimination. The University of California at Davis was activelyengaging in an Affirmative Action program that set aside 16 spaces forminority students each year. With the medical school only admitting 100people a year lowered the chances for a white student to get in. Bakkemade his strongest case by attacking this quota policy. It is however astrong argument that there are numerous students that did even better thanBakke on all of his tests and other required aspects for admission. ButBakke was the only person that came forward to seek a right to the wrong ofbeing excluded due to race. Bakke actually would grow to be more importantas a cause rather than one man getting into school.This case had a slightly different set of circumstances than the DeFuniscase. The most important aspect was the fact the Bakke was not admitted toschool during the initial proceedings. This was to be very important sincethis was the Achilles heal of the DeFunis case. Bakke was obviously notgoing to be rendered moot which was going to force the court to make ananswer regarding the practice of Affirmative Action. Bakke began hischallenge in a California State court and received a verdict that struckthe special admission policy of the admission policy. Bakke however wasnot admitted to school after the verdict had been set down. The schoolchallenged the decision of the lower court with the California SupremeCourt. That decision was 6-1 that allowed Bakke to be admitted toschool. This set the school off and drove the school to appeal thedecision to the United States Supreme Court.

The case received a large amount of press and was the most important storyduring the late 1970's. What made the case so interesting was the directsplit between the Supreme Court Justices. The court split four Justicesthat supported the Bakke position along with four that felt the AffirmativeAction program in the UCD was constitutional and necessary. It was theopinion of Justice Powell that broke the tie and ultimately set thedecision in Bakke. Powell felt that while the race could be used as anacceptable means for selection into higher education, the use of quotashowever was unconstitutional. The decision was a rather whitewashed answerto the growing Affirmative Action question the country wasasking. Basically, it was the courts contention that Affirmative Actioncould continue as long as racial set asides were avoid. I argue here thatthis decision did very little to actually answer the question ofAffirmative Action. It only instructed the education system to be morediscreet with its admission policies. A school still has the right to userace as a factor in selections but may not use strict quotas. What is theactual difference? I argue that there is no difference but the Bakkeopinion did actually help racial enrollment in higher education.What were the actual impacts of the historic Bakke case? According thefindings of Ball the overall impact of the Bakke case has improveddiversification in all aspects of higher education. Because Bakke actuallylegitimized Affirmative Action without quotas allowed diversification toflourish in virtually all higher education institutions. Ball reportedthat between 1988 and 1995 African-American enrollment increased more than30 percent. Along with that the number of degrees earned by AfricanAmerican during the same time increased 34 percent for bachelor degrees and40 percent for master degrees. Medical schools and law schools experiencedthe same type of boom that all other minorities experienced. One can seethat this court case opened the eyes of the higher education institutionsand allowed better colorblind practices for admittance touniversities. Bakke actually gave strength and support to the watered downmore friendly version of Affirmative Action. I feel that had Bakke notcome along that this would never have had the chance to evolve. There isstill a fight in the US courts today over the validity and theconstitutionality of Affirmative Action.

The Supreme Court make up holds the key to the interpretation of thevalidity of Affirmative Action. Many suggest just like Ball that in futureyears the opinion the court may change based on its makeup. At the timethe book was written Ball assumed that this might change with the electionof the next president. The next president will have the power to appointnew Supreme Court justices that may have differing positions than theirpredecessors. The Supreme Court was quick to avoid the Affirmative Actionissue in the DeFunis case and still not make a definitive statement withBakke. The future however holds that this issue will resurface and willonce again rise to the level of the Supreme Court.

The Bakke Case was a very informative book that allowed me to understandthe ramifications of Affirmative Action in higher education. The DeFuniscases and the Bakke cases were described in great detail and allowed thereader to gain a deep understanding of the courts opinion. The onlydifficult aspect of the book was its legalistic jargon and terms. The bookpresented many findings that have stemmed from the Bakke case and how theyhave effected society. Bakke will continue to be a landmark court casethat is a household name for its decision on affirmative Action. It willbe interesting to see what it to become of Affirmative Action and the Bakkeprecedent in the future.    

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This commentary is offered in response to Justin Vaughn's review of "TheBakke Case," by Howard Ball, a veteran of the civil rights movement,professor of political science, and former dean of arts and sciences at theUniversity of Vermont. Vaughn writes that Ball' s explanation of the "deftcommunication of the different views behind each of the parties in Bakke v.California Board of Regents" was particularly lucid. I believe that thiswas the most important aspect of the Bakke case that Professor Ball couldhave chosen to illuminate, and that Mr. Vaughn could have selected tohighlight in his review. Although the concept of affirmative action iscertainly possible to grasp and understand, it has often been misunderstood.

Before commenting upon each of Ball's explanations of the views of the Bakkecase as outlined by Mr. Vaughn, it is noteworthy to digress briefly to theorigin of the term, affirmative action, in order to see that such anemotion-wrought term was actually coined serendipitously by Hobart Taylor,Jr. in 1961. Taylor, a young black attorney and son of a good friend ofthen Vice-President Johnson, was asked by Johnson to assist with writing anexecutive order banning discrimination by federal contractors in hiring.Taylor agreed and assisted future Supreme Court Justices Arthur Goldberg andAbe Fortas in drafting Executive Order 10925, that established the EqualEmployment Opportunity Commission. The order went into effect virtuallyunnoticed, with the term, affirmative action bestowed by Taylor because ashe later said, "I was searching for something that would give a sense ofpositiveness to performance under that executive order, and I was tornbetween the words positive and affirmative…I took affirmative because it wasalliterative" (Lemann, 38).

Returning to Mr. Vaughn's examination of Ball's insightful discussion, Ifound the following points particularly powerful in illuminating theaffirmative action discussion:

(1) " Ball does an excellent job in highlighting the idea that this case wasrepresentative of Affirmative Action's inherent conflict between numericalequality (the Davis position) and moral equality (the Bakke position)"(Vaughn).

This delineation and explanation of moral equality versus numerical equalityis short and concise, but it precisely demarcates the affirmative actionargument.

(2) " Also, Ball perfectly contrasts the Institutional/Group stance taken byDavis and the Private/Personal stance taken by Bakke, and still manages toshow that while by law both cannot be right, neither is completely wrongeither" (Vaughn).

Herein Ball, as pointed out by Vaughn, condenses the entire argument ofBakke versus the California Board of Regents into a few words, while at thesame time indicating that neither position is right nor wrong, the exactpoint which makes the entire affirmative action debate so difficult andemotional.

As author Nicholas Lemann pointed out after sampling a number of opinionsabout the meaning of the term affirmative action, the general belief of theAmerican public about affirmative action is something like "stuff that'sdone explicitly to help black people" (Lemann, 40). If Lemann's analysis ofpublic opinion is even remotely correct, then work such as Howard Ball's in"The Bakke Case" is sorely needed and beneficial in sorting out the truthand clarifying the particulars regarding affirmative action.  

REFERENCE:

Lemann, Nicholas. "Taking Affirmative Action Apart," THE NEW YORK TIMESMAGAZINE, June 11, 1995.

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Ever since the formal dissolution of the institution of slavery in theUnited States, the nation has been gripped by a debate over the rights ofAfrican-Americans, their role in this nation, and what should be done toatone for the racial evils perpetrated in our country's first century. Thedebate has been a progressive one, growing and changing along with theUnited States. The latter question, regarding atonement, has receivedintensified attention since the Civil Rights Movement and its advancementsthrough the 1960s. As the years go on, the detrimental sociological effectsof our past are increasingly obvious and it is equally increasingly obviousthat something must be done to combat the damage that is being done to ournation.

This is not to say that efforts have not been made, dialogue has notbeen entertained, or that programs have not been conceptualized andadministered. All this and more has occurred. Unfortunately, the criticsof these programs and ideas have too often had louder and more powerfulvoices than those of their proponents. The nation has yet to unveil abridge over our racial divide that satisfies the demands of those who needhelp, complies with the constitution that governs us, and is valid and fairto the point that it can not be disapproved of by those who will not benefitfrom it, but must finance its objectives. Instead, we are left withunderfunded and overextended programs that suffer from public disapprovaland civic controversy.

One such idea that can be placed into this category falls under therubric of Affirmative Action. Since there is no singular policy ordefinition of Affirmative Action, it must remain loosely identified as anidea. Affirmative Action programs have been administered in many differentareas of society, and have been extensively contested in every form,particularly with respect to employment and higher education. In anutshell, Affirmative Action programs seek to remedy decades of injustice bygiving historically disadvantaged demographics opportunities that societyand institutionalized discrimination ordinarily would have never allowed.

One such example can be found at the University of California-DavisMedical School. Davis, as it shall henceforth be referred to, set aside 16of its 100 seats of its medical school class for minorities, demanding lowerstandards for those occupants than those required of the other 84. Had onlyuniform standards been used, Davis would have had a class that would havebeen completely white. In effect, without the 16% set-aside, no blackstudents would have been able to attend. However, the problem with theDavis plan, and with Affirmative Action in general, is that it appears thatfor every minority that is aided by this program, a more qualified whitestudent is penalized for his race and denied an opportunity. One suchstudent, Alan Bakke, agreed with such a notion, and sued the University ofCalifornia school system (a public cohort) for discrimination on the basisof race; a charge that constitutionally violated the 14th Amendment andstatutorily violated the Civil Rights Act of 1964.

The case that subsequently ensued, Bakke v. California Board ofRegents, has since become a landmark case in American legal studies, andmarks the first time the U.S. Supreme Court heard and decided a case basedon the constitutionality and legality of Affirmative Action practices. Inhis work "The Bakke Case," Professor Howard Ball goes into great depth andproduces a tremendously informative and substantive discussion of thehistory of Affirmative Action prior to the Bakke decision, the intricaciesand minutiae involved in the case and the Court's ruling, and the subsequentdevelopment of Affirmative Action since the ruling was handed down.

Ball is commendably disciplined in his objectivity throughout "TheBakke Case," to the point that it is still unclear whether he supportsAffirmative Action or if he agrees to the merits of Bakke's position. Thisobjectivity lends Ball credibility, and positions the work as anauthoritative discussion of the issue of Affirmative Action and an excellentsynopsis of the arguably most important case that has ever been heard on thesubject.

Though the strengths of "The Bakke Case" abound, it is the weaknessesof the work that shall be discussed first. These weaknesses are primarilycosmetic, for there is nothing fundamental that I disliked or would changein Ball's endeavor. First, "The Bakke Case" is billed as a read for generalreaders, but I found it to be appropriate for a student with a strongunderstanding of the fundamentals of the U.S judicial structure and thelegal system. An individual with limited or less knowledge of the law andthe courts would find a great deal of difficulty in understanding many partsof this book. To Ball's defense, however, other parts of the book do notsuffer from such difficulty. For example, the section of the conferencingcomponent of the U.S. Supreme Court as well as how opinions are assigned andcompleted were very informative and would be easily understood by a novicestudent. Additionally, I do not think Ball's targeted audience were suchgeneral students, but rather those of the publisher.

Second, Ball spent more time discussion the intricacies of the Bakkecase than the issue of Affirmative Action itself. While he got into greatdetail over various tidbits found in certain justice's conference notes, heonly offered one or two sentence discussions of the major ideologicalreasons for support or opposition to Affirmative Action policies. Again,this can be attributed to the true purpose of the book. If it was toprovide deep insight and understanding of the issues involved in the debateover Affirmative Action, then "The Bakke Case" falls short. However, if thepurpose was to provide a tightly researched treatise on the legal andpersonal forces at play during the tenure of Bakke v. California Board ofRegents stay on the U.S. Supreme Court's docket (I think this in fact is thepurpose) Ball's effort was quite successful. Nevertheless, more insightwould have been appreciated, although it would have made the book another 50to 100 pages longer.

Third, while many readers (including myself) would find Ball'sobjectivity appealing, others may not. When dealing with a complex andcontroversial issue such as Affirmative Action, it is often beneficial, orat least easier, to be told what is right, what is wrong, and what oneshould think. Ball does none of this, but rather lays out the facts and thearguments and allows the reader to make up their own mind. Similarly, thisbook does not offer a position that you can agree with or disagree with.The reader is only provided with value-less information, and left tointellectually proceed on their own. Some readers may find this a strength,others a flaw.

Finally, Ball offers no strong prognostication for the future.Following his discussion of the Bakke case, Ball offers a chapter on thefurther evolution of Affirmative Action through Presidents Reagan, Bush, andClinton. However, after all this he does not extensively discuss what hethinks will happen. While this is consistent with the objectivity he hasshown throughout the work, the respect that I developed for his intellectduring the first seven chapters left me wanting more than the basic andgeneral predictions found in the final chapter, "The Bakke Legacy: HangingBy A Thread?"

In all fairness to Professor Ball, it must be noted that "The BakkeCase" overall is an excellent work, particularly so when the audience iscomposed of readers who already have an understanding of both theAffirmative Action issue, the legal system, and the fundamentals of the U.S.judicial process. Readers lacking such knowledge may find difficulty withsome parts of "The Bakke Case" and dissatisfaction with other parts. But onthe whole, Ball provides an exhaustive account of an incredibly importantissue in American law and politics.

"The Bakke Case" also has some great parts, but critiques oftendownplay the positive aspects of whatever it is that is being critiqued.One example is Ball's discussion of the evolution of the Bakke opinion. TheBakke opinion is by all accounts one of the most complex and convolutedrulings ever handed down by the Court, and the way in which it was createdis even more so. Ball simplifies and provides great understanding to such acomplex process, without 'dumbing down' the material for the reader. Ballsimilarly covers amicus curiae briefs, providing relative understanding andcommunicating the vast importance of their role in the U.S. Supreme Court,particularly those coming from the U.S. Solicitor General's office. HadBall taken the same care to define strict scrutiny vs. rational basis, thisissue would have been equally as clear.

Other final strengths of "The Bakke Case" include Ball's deftcommunication of the different views behind each of the parties in Bakke v.California Board of Regents. Ball does an excellent job in highlighting theidea that this case was representative of Affirmative Action's inherentconflict between numerical equality (the Davis position) and moral equality(the Bakke position) and how this conflict divides those in charge ofinterpreting the constitutionality of such a conflict into starkly differentopposing camps. Also, Ball perfectly contrasts the Institutional/Groupstance taken by Davis and the Private/Personal stance taken by Bakke, andstill manages to show that while by law both can not be right, neither iscompletely wrong either. Without Ball's objectivity, this probably wouldnot have been possible. Finally, Ball showcases the Court's unwillingnessto make policy and its preference only to interpret the legality of suchcontroversial issues. Ball aptly quotes Chief Justice Burger's notion thatcourts do not belong in the business of "establishing ground rules foreducators … We have far more competence to say what cannot be done than whatought to be done" (115).

All in all, Howard Ball's "The Bakke Case" is an enjoyable,informative, and worthwhile read. It would be highly recommended to thosewho have existing knowledge of U.S. law and justice and an interest inAffirmative Action. Minus those qualities, "The Bakke Case" is stillworthwhile, but certainly less so.  

(309)438-5919

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The hotly debated issue of affirmative action is deeply rooted with ourawareness of American history. It is an issue that reaches far beyond thelines of higher education, or political relevance. Affirmative action makesseveral assertions about not only our past as a nation, but our present andfuture as well. Can our government compensate an entire culture of peoplefor years of oppression and mistreatment? Is our constitution trulycolor-blind as we would like to believe, or are we merely glossing overrealities to make it appear so? These are but a few questions that havebeen raised by affirmative action which have little to do with highereducation, but a lot to do with our culture.

The case of Allan Bakke versus the University of California is credited asbeing the most important Supreme Court case involving affirmative action,but not the first. In 1971 a law student Marco Defunis, challengedaffirmative action when he filed charges against the University ofWashington, in the case Defunis vs. Odegaard. The Universities admissionspolicies at that time allotted sixteen percent of each freshman class forminority applicants. Minorities were regularly admitted using lowerstandards than those set for majority students. Defunis won the lowercourt's decision, and was allowed admittance. Later that year the lowercourt's decision was overturned by the Washington State Supreme Court'sdecision to validate affirmative action. Defunis later filed for certiorariin the U.S. Supreme Court, and Court Justice William Douglass issued a stayof action to the University, pending a final deliberation of the issue bythe court. It wasn't until 1974, when the U.S. Supreme Court began to hearthe arguments on the Defunis case, and eventually dismissed the case. Thecases dismissal was made on the basis that since Defunis was about tograduate, the issue was moot. This allowed the court to avoid making anydecision about the presence of affirmative action, or remark on the mannerin which programs of affirmative action in were carried out. The Bakke caseproved to be much more substantial, although not as much as some may haveliked.

Allan Bakke was a well-paid mechanical engineer, as well as a war veteran,when he began to apply for medical schools in 1972. After being rejectedtwice by the University of California, Bakke brings suit in CaliforniaSuperior Court in 1974. The admissions practice at USC at the time was toleave sixteen percent of its admissions for minority students, quitesimilarly to the Defunis case. Bakke brought up suit upon the basis ofdiscrimination under the fourteenth amendment and title six of the CivilRights Act. The judge ruled against the use of preferential treatment, butdid not admit Bakke to medical school. The University appeals the decision,and was once again ruled against by the California Supreme Court in 1976.This time the court ordered that Bakke be admitted to the school.

By the time the case fell into the hands of the Supreme Court, the Bakkecase had grown beyond the boundaries of higher education, and imposeditself on the very interpretation of American law. The importance of theBakke case revolved around three burning questions. First, can either thefourteenth amendment, or title six of the 1964 civil rights act create anabsolute barricade against affirmative action? These were issues dodged bythe Defunis case, although they were the same basis for complaint.Secondly, can preferential treatment compensate for historical oppression?Thirdly, is our interpretation of the American Constitution truly color-blind?

Title six prohibits any institution receiving federal funding fromdiscriminatory practices, based upon race, color, or national origin.Similarly, the fourteenth amendment to the Civil Rights Act maintains thatno state can "deny to any person within its jurisdiction the equalprotection of the law." Despite the seemingly direct language in botharticles, there was intense speculation as to the intent of eitherlegislation. The arguments were that, affirmative action providesopportunity to those largely without, thereby establishing equality. Theother faction would enthusiastically contend that discrimination has nocolor boundaries, and that everyone is equal under the law.

The Supreme Court was split into equal halves throughout deliberations. Theoutcome was eventually decided by the opinion of Justice Powell. The courtsdecision seemed to be nothing more than an arrangement of compromise.First, Bakke was ordered into the USC medical school. Secondly, the Courtruled that racial quotas as a method of affirmative action wereunconstitutional. The message delivered by the court's decision, was thatracial classifications, and preferential treatment are not alwaysunconstitutional.

Ball showed good judgment by not providing any personal commentary on theissue of affirmative action, but rather allowing the infuriating judicialprocess to speak for itself, through providing actual accounts. The"whishy-wash" decision of the Supreme Court in the Bakke case was basedlargely upon necessity, and that is what I find to be most alarming. TheFederalist papers (propaganda written prior to the civil war) addresses anaspect of American politics they labeled as "factions." Factions simply arecompeting, and often conflicting agendas, that regulate almost all ofAmerican policy making. Their belief was that factions were good, becausethey kept the free market system moving, the essence was competition. Iwonder what Madison, or Hamilton would have said about affirmative action.By applying the equation of faction, we have reduced affirmative actioninto a competition of the most freedom. Ball unravels the Bakke case(slowly at times), but does illustrate the very potent point that nothingis ever only black or white. ·

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I find the case of Bakke to be very interesting, and am especiallyinterested in cases involving this so-called reverse discrimination becauseI just finished going through the law school application and acceptanceprocess. The review gave me a very good explanation of the situationencountered by Bakke, as well as explaining Ball's book. I found myselfwanting to read the book after listening to the discussion in class andafter reading the review. I really liked the introduction and felt it wasone that gave a good historical set-up and introduction into affirmativeaction, which is exactly why this case was even possible.

I feel affirmative action practices like the one at UCD is very unfair,and it is not fair to turn down students who are more qualified for thosewho are of a specific race. What is even more bothersome is thecontroversy involves medical school. This is where our future doctors whoare going to be diagnosing, operating, and treating us are coming from, andthis requires the best and smartest people, not a racially representativecommunity. What is also problematic to me, though not as much asprospective medical students, is the program Michigan was using. The factthat an athlete or minority is allowed points due to just these factorsmakes absolutely no sense to me. Perhaps a white person graduates at thetop of their high school class, but is not a minority or athlete. Theyapply to Michigan, and would have a seat due to academics, but are thenbumped out of the running because a "C" student is the star running backfor the high school football team. College is about education first, andalthough sports may generate revenue for a school, it is not fair to thehardworking, good students who may lose seats in universities due toaffirmative action programs.

Other examples of the problems that come along with admissions to schoolsand affirmative action practices could go on and on. However, I may decideto read Ball's book just to get a more in depth understanding of Bakke'ssituation. The review stated that Ball is very objective in hispresentation of the case and even in his beliefs on affirmative actionseems to be positive aspect of the book. I can, though, understandJustin's frustration with Ball's lack of giving some direction and wantingmore. As with many of the books we have been reading for this course,downfalls appear to be present in this book as well, but the discussion andreview of Ball's book has grabbed my attention and put this book on a listof books I would like to read. ·

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