An Interesting Historical Note About the Bakke Case

The first major affirmative action case went down in history as a case about "reverse discrimination" favoring blacks, but the underlying facts were more complicated.

|The Volokh Conspiracy |

Regents of the University of California v. Bakke was the Supreme Court's first major opinion on the constitutionality of government affirmative action preferences. I am (barely) old enough to have read about the controversy contemporaneously (as I had a subscription to the New York Times for five cents a day in sixth grade through my elementary school (!)), and of course have read about it often since. Both at the time and beyond, the case has been portrayed as pitting racial preferences for African Americans against the rights of white students like Bakke, who insisted on race neutrality.

Justice Thurgood Marshall's emphatic dissent helped crystallize the black-white prism through which the case is viewed. His opinion begins, "I do not agree that petitioner's admissions program violates the Constitution. For it must be remembered that, during most of the past 200 years, the Constitution as interpreted by this Court did not prohibit the most ingenious and pervasive forms of discrimination against the Negro. Now, when a State acts to remedy the effects of that legacy of discrimination, I cannot believe that this same Constitution stands as a barrier."

The strange thing about this framing of the case is that African Americans not only weren't the only beneficiaries of the minority quota that University of Davis Medical School established, they weren't even the primary beneficiaries. As Justice Powell explained, in 1971 Davis increased the medical school class size from 50 to 100, and "from 1971—through 1974, the special program resulted in the admission of 21 black students, 30 Mexican-Americans, and 12 Asians, for a total of 63 minority students. Over the same period, the regular admissions program produced 1 black, 6 Mexican-Americans, and 37 Asians, for a total of 44 minority students."

Two things are notable about these statistics. First, almost 50% more Mexican-Americans than African Americans were admitted under the affirmative action/quota program.

Second, out of 400 students in four years, under regular admissions 37 Asians were admitted, or almost 10% of the class. At the time, Asian Americans were about 2.5% of California's population. Despite Asians being present well above their demographic percentage in the class via regular admissions, 12 additional Asians were admitted under the minority quota. Regardless of whether one's rationale for affirmative action is "diversity" (as Justice Powell pioneered in his Bakke concurrence) or recompense for exclusion from educational opportunities due to historical and current discrimination, it's hard to see the legal rationale for "Asian preferences" given their strong representation among the student body without such preferences.

In the Court's various opinions, meanwhile, the words "Negro" or "Negroes" appear dozens of times; Asians and Mexicans are barely mentioned. Justice Powell's opinion does have a footnote addressing the Asian anomaly: "The University is unable to explain its selection of only the four favored groups—Negroes, Mexican-Americans, American-Indians, and Asians—for preferential treatment. The inclusion of the last group is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process." But that's about it.

It's rather curious that both the Court and public discussion focused on the black-white dynamic, given that twice as many Mexican and Asian Americans were admitted under the minority quota as African American. But it seems that Bakke set a pattern for future discussions of affirmative action. Today, African Americans are a shrinking minority of those eligible for most affirmative action programs. If one adds together the population of Hispanics, Asian-Americans (who are eligible for government contracting and other preferences, but not university admissions preferences), and Native Americans, they outnumber African Americans by over 2-1. But we still debate racial and ethnic preferences as if the vast majority of beneficiaries are African Americans. (And, I should add, those who implement affirmative action programs still are unable to explain why they use the favored groups, e.g., why white Argentines get preferences but dark-skinned Yemenis do not, or why people from India are lumped in the same category with people from Malaysia).

Anyway, I wonder how the litigation would have gone if Bakke's attorneys had argued that affirmative action preferences, even quotas, were lawful given the special history of African Americans, but that Davis' program was unconstitutional because it extended the same benefits to other groups that did not have a 400 year history of slavery and Jim Crow.

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  1. Dear Professor, I understand you’re writing a book on this – if so, when does it come out? It should be quite informative. No promises, but I might even buy the book rather than wait for some library to get it (and anyway, who knows when libraries will reopen – they’re not essential like liquor stores.)

    Indignation and appeals to (classical) liberal principles haven’t killed racial preferences – maybe ridicule will do the job.

  2. “But we still debate racial and ethnic preferences as if the vast majority of beneficiaries are African Americans.”

    That’s because slavery makes a handy excuse for modern day racial discrimination. Once it gets you in the door, you then do whatever discriminating you had in mind, but you have to get in the door first.

    Slavery remains the last resort argument for preserving racial discrimination when challenged, and probably will remain that until the courts finally decide they’ve had enough of it, and stop folding when somebody brings up slavery.

    1. I think the “first begetters” of racial preferences had the proverbial “good intentions,” if by “good intentions” one means a subjective feeling of being a righteous do-gooder. Which is what it generally means.

      1. Even the authors of Jim Crow could probably say as much. Like good intentions ever excused something that was wrong to begin with.

    2. That’s because slavery makes a handy excuse for modern day racial discrimination.

      Precisely. This seems so self-evident that I wonder if there’s a reason Prof. Bernstein is ignoring this.

      Perhaps it’s a subject that is so well-trod that it doesn’t really bear repeating and Prof. Bernstein is looking for a novel approach to sell books.

  3. I much prefer a discussion of the Black man who stole Baake’s seat and why the State of California revoked said Black man’s medical license.

    1. This sort of thing goes to my point. I’ve seen several articles over the years about the black doctors who were admitted via affirmative action the year Bakke was rejected. I’ve never seen any article, or even any mention, of any of the twice-as-many Hispanic and Asian doctors who were so admitted.

      1. Perhaps because they didn’t kill anyone — Chavrez killed three with botched lyposuctions…..

        1. Well, that certainly suggests an interesting line of inquiry, now, doesn’t it? How do you know they didn’t? Have you checked?

          1. Also, he and other black Davis graduates were subject to some adulatory coverage before his career turned scandalous. No such coverage of the Hispanic and Asian grads.

          2. Brett — how about board passage rate?

  4. “special history of African Americans…”

    Please show me any definable group in history that has not suffered some kind of oppression. Maybe once you do that I will believe any particular group qualifies as “special” from a historical sense.

    1. Marxists in academia, other than the short period of loyalty oaths.

    2. The other thing people forget is that one White man from the North DIED for every ten slaves that were freed. Where’s that “special history”?

  5. The thing is, since we’re talking about the State of California, we’re talking about a state which was directly admitted as free state, and where there was a lot more discrimination-in-law against East Asians than blacks.

    For an organ of the State of California located in the capital of California, affirmative action as “restorative justice” made substantially more sense for East Asians than it did for blacks.

    1. This would require ‘restorative justice’ to actually make sense in the first place. The problem here is that, however much sense it might appear to make in principle, if carefully carried out with regard to the actual victims and oppressors, it makes no sense when the beneficiaries are chosen on the basis that they merely look like the victims, and the ‘restoration’ is done at the expense of people who merely look like the historical oppressors.

      AA, as actually practiced, only makes sense if you reason in the manner of a racist, treating individuals as mere interchangeable instances of their group, with no right to be treated as individuals on their own merits.

      1. Affirmative action and any system based upon granting preference based upon race is racist by nature. Sure the left tries to get around the “racism” thing by coming up with a silly definition that is in of itself racist (only white people can be racist.) And I don’t know how the current system of blaming white people as a group and then discriminating on them as a collective group is meant to make up for the wrongs of many generations ago. We got rid of the “sins of the father” thing a century ago.

        Also, how do you not expect some white kid in the Mid-West who was raised in a working class, rural family, not to feel somewhat put back when he gets rejected to an elite school so some other kid similarly situated in an urban environment who happens to be of a “preferred” race gets a seat and a full scholarship. The diversity hustlers say “well he should realize that he has white privilege and be happy about that” but really we know that is just reaching for straws to justify the racism of affirmative action.

  6. The reason for the Asians is they were hoping to justify the program as compensatory. And Asians had suffered massive discrimination in California’s past.

    Post-Bakke the diversity rationale excluded Asians.

    1. Interestingly, Powell pointing out that the state had never justified why chose the four groups it did, and no one ever has since. Under the diversity rationale, one would think that the category wouldn’t be “Asians,” but Chinese, Japanese, Vietnamese, Filipinos, Indians, etc. Browsing Berkeley’s current stats, Chinese and Indians dominate the “Asians,” while there are relatively few Filipinos and Vietnamese.

      1. (and it’s completely screwy to think that Asian Indians and Filipinos are somehow substitutes for one another because they are all “Asian”)

      2. Wasn’t it officially listed as “disadvantaged” with Baake’s claim that being a Vietnam Vet counted?

      3. Check the briefs. I bet the school argued it in the briefs.

  7. As always, great comment thread.

    Weird how being against affirmative action keeps bleeding over towards white grievance, including some slavery apologia.

    1. Weird how being for affirmative action keeps on bleeding toward blaming all your grievances on white people and something that happened 200 years ago…

      1. Yeah, that’s a thing I do all the time.

    2. Maybe you could point out the ‘slavery apologia’?

      1. Look to Ed’s lovely comments.

        1. I don’t see any “slavery apologia” there. “Slavery apologia” would be a defense of slavery, wouldn’t it? Not just noticing that it was a long time ago, happened to people who are all long dead, and a lot of other people died ending it.

          1. https://reason.com/2020/05/12/an-interesting-historical-note-about-the-bakke-case/#comment-8252146

            The idea that slavery is fine now because a bunch of white Union men died in the Civil War is pretty white-washy (and ignores all those Confederate white men), wouldn’t you say?

            1. As Is often the case, I have no idea what point Dr. Ed was trying to make, although I am sure it was 1. Stupid and 2. Factually incorrect. But while I certainly wouldn’t put it past him, I don’t see how this particular comment can be taken to mean “slavery is fine”.

              1. ” 2. Factually incorrect.”

                It is at least approximately correct. The ‘United_States_military_casualties_of_war’ wiki page lists 364K Union dead[1], and the first google hit says the 1860 slave population was 4 million. So approximately 1:11.

                [1]as was common until recently, less than half were killed in combat – disease killed more soldiers than enemy action in most wars prior to WWII.

                1. I assume that the figure includes the ~40,000 black soldiers who died fighting for the United States, so it more like 1:12. Still, coming within an order of magnitude of the truth is pretty good for Dr. Ed.

                  1. That’s a good point.

                    The odd thing is that the current thinking is that we don’t actually have accurate numbers for Civil War casualties. Apparently the Union Army was pretty haphazard about accounting for deaths. The new guesses are substantially higher than earlier numbers.

                    Here is an NYT article. Unfortunately the link to the actual paper in that article is broken.

              2. I should say, Noscitur, that you always have your arguments extremely well buttoned up both in logic and in doctrine, so I take your point quite to heart.

                Appealing to Union deaths as absolution seems to render slavery a solved problem, never to be spoken of again. I’m taking apologia to mean ‘not bad anymore’ versus ‘good back then.’

                That may not be exactly the right way to put it, but regardless of the specific terminology, I’d say my larger point about the racial tenor in the comment threads to Bernstein’s affirmative action posts stands.

            2. Sarcastro, he nowhere said that slavery is fine now. I think the point is, rather, that slavery is history now, and nobody living today has any claim to be a victim or a perpetrator, so GIVE IT A REST ABOUT SLAVERY ALREADY.

              1. Ignoring history does not have a great legacy.

                Do you think we should stop thinking about the Holocaust?

                1. I think of Sarcastro being the guy in this cartoon:

                  https://dilbert.com/strip/2018-07-08

  8. Subrogation is different from apologia….

  9. We may well see that “special history” – cf., “social justice” – argument raised again if CA undoes Prop 209 this Fall and reinstates affirmative retribution, only to find it eventually decided by a decidedly un-Bakke Supreme Ct.

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