What Rights for Whites?

Monday, Oct. 24, 1977
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The Bakke case brings a troubling racial argument to the court

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As dawn broke over the white-pillared U.S. Supreme Court one day last week, more than 100 spectators were already clustered on the granite steps, huddled in bed rolls or stamping their feet to ward off the autumn chill. By midmorning the crowd had doubled and doubled again, stretching across the court plaza all the way to First Street. Photographers maneuvered to capture celebrities as they arrived, including Senators Robert Griffin and Thomas Eagleton, and Mrs. Earl Warren, widow of the Chief Justice who presided over the historic school desegregation decision of 1954. As the crowds pressed forward, young demonstrators waved picket signs and chanted slogans.

Inside the court, every seat was taken by the time the principals began arriving. Archibald Cox, Harvard law professor, former Solicitor General and special Watergate prosecutor, was resplendent in black cutaway, striped tie and a matching gray crew cut. So was Wade McCree, in the Solicitor General's traditional morning coat. At precisely 10 that Wednesday morning, the court clerk intoned "Oyez, oyez," and the nine black-robed Justices suddenly appeared from behind red velvet curtains and settled into their seats at the elevated bench. The stage was set for what could turn out to be the most important civil rights case in a generation, Regents of the University of California v. Allan Bakke.

At a signal from Chief Justice Warren Burger, Cox began presenting the case of the university. He underlined immediately the importance of responding to the charge that a white male had been excluded from medical school by "reverse discrimination" favoring disadvantaged minority candidates who were, by traditional admission standards, less qualified than the white. Said Cox: "The answer which the court gives will determine, perhaps for decades, whether members of [racial] minorities are to have meaningful access to higher education." After a few minutes, Justice Byron White interrupted Cox to inquire about the adequacy of the trial record in lower courts. And then for two hours the Justices questioned the lawyers, Cox and McCree and Reynold Colvin, Bakke's San Francisco attorney.

From the questions it was clear that the Justices were struggling to adapt the most perplexing social questions into a manageable legal framework. They were obviously not comfortable. Justice Lewis Powell, normally the most courteous of Virginia gentlemen, uncharacteristically attacked Colvin: "We are here primarily to hear a constitutional argument," he said softly. "You have devoted 20 minutes to belaboring the facts, if I may say so. I would like help, I really would, on the constitutional issues."

Colvin could not help much. He focused his case simply on the interests of his client, Allan Bakke of Sunnyvale, Calif, a tall, blond engineer and father of two, who at 37 still harbors hopes of starting medical school. Bakke is largely a mystery to the world, for he has consistently refused requests for interviews. He earned two engineering degrees and fought as a Marine captain in Viet Nam, then decided to change careers. He started working as a hospital volunteer and taking science courses at night. In 1973 he applied to a dozen medical schools. By then he was already 33, and they all turned him down.