The Law: What Rights for Whites?

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The most galling rejection came from the nearby University of California at Davis. Established in 1968, the medical school had enrolled only two blacks and one Chicano in its first two entering classes. So the faculty authorized a special admissions program for "individuals from disadvantaged educational, cultural and socioeconomic backgrounds"; soon it reserved 16 of 100 slots for them in each class. By 1974, the university was using application forms that asked for racial identification; the results made it clear that only blacks, Chicanes, American Indians and Asians need apply for the 16 places. The university never denied that by all the standard criteria—grades, test scores, benchmark totals—Bakke's record was better than that of many minority students enrolled. The special 16 in the 1973 class scored average aptitude percentile rankings of 35 in science and 46 in verbal skills; Bakke scored 97 in science and 96 in verbal skills.

Bakke decided to sue on the ground that he was a victim of race discrimination.* But the origins of his lawsuit are somewhat mysterious. An admissions officer at Davis, later fired, apparently encouraged Bakke to bring suit against the university. Was that an attempt to subvert the admissions program or simply an effort to get a court ruling on this complex issue? And why did the university virtually concede in court that Bakke would have been admitted in an open competition for the remaining 16 seats?

Ironically, it was the California Supreme Court, long regarded as perhaps the most liberal and forward-looking in the country, that upheld Bakke in a decisive 6-to-l opinion. Basing its decision on a rather literal reading of the 14th Amendment guarantee of equal protection under the law, the California court stated that the use of race as a criterion in any official program calls for judicial "strict scrutiny." Unless a "compelling state interest" can be demonstrated and there are no viable, nonracial alternative methods available, the use of race is forbidden. Here, the court ruled that the university had not exhausted alternative methods. Among its suggestions: more aggressive recruitment of minority applicants or remedial education programs, and, at bottom, special admissions purely by educational and economic disadvantage, not by race.

Disregarding the advice of many civil rights groups, which thought the Bakke case a weak one on which to base a major fight, the University of California decided to seek review by the U.S. Supreme Court. When the high court agreed to hear the case, some 130 organizations, ranging from the American Federation of Teachers to the Sons of Italy, moved in to state their views on the controversy. They submitted a record 58 friend-of-the-court briefs, 42 of them opposing Bakke.