The Real Problem with Bakke

One of the crucial difficulties with the Allan Bakke vs. Regents of the University of California case is that there can no longer be a principled resolution of the conflict. While to many people this may appear to be an outlandish point, once the government has entered a professional field such as education, the possibility of upholding standards independent of politics is completely absent. This is especially so in a quasi-democratic society.

In his new book Taking Rights Seriously, Professor Ronald Dworkin of Oxford University defends the University of Washington School of Law in the Defunis case, partly on grounds that law schools have the right to select candidates on whatever grounds they choose. Dworkin discusses the case as if the University of Washington School of Law had nothing to do with government. His judgment would be valid for the Bakke case if the University of California were a private institution. The reason is that private institutions are not legally or morally bound to serve the "public interest" as expressed through complicated quasi-democratic processes at the various county, state, and federal government levels.

If I were to start a college of philosophy, I would have the right (morally speaking) to specify race, religion, nationality, sex, or anything else I wanted as the criterion by which I would consider applicants. As long as I had no ties to the political process, the justification for interfering with my practice would simply not exist—with due respect to all the arguments related to discrimination. Even those who defend anti-discrimination and integration legislation and court decisions usually tie their reasoning to some form of government patronage. If a school gets tax money, it must abide by various provisions of the U.S. Constitution, including due process, equal protection, etc. The Bill of Rights, from which these various provisions are usually derived, is addressed to the government, not to private institutions. Once, of course, the government takes over what should be a private, community, or professional function, the provisions applicable to it by way of the Bill of Rights and the other amendments to the U.S. Constitution apply.

The Bakke case is just one instance, but there are thousands like it. The question in Bakke has nothing to do with whether a university as such has the right to invoke a quota system. Of course universities as such have the moral right to do so, but one would suppose that some of them would no longer be sought out by potential students, since this would indicate that the university now has other central purposes than education. There is nothing ipso facto wrong with trying to help the underprivileged, but there may be something unwise about changing the functions of a medical school, law school, or even dancing school to achieving that end rather than to teaching its field of speciality to the most qualified applicants.

What the Bakke case pertains to is the issue of public decisionmaking. Should someone's race, color, national heritage, or religion have a bearing on whether he or she will receive the services government should provide for its citizens? But the answer to this question depends on what services government should provide for the citizens. If it is the business of governments to establish full equality of professional expertise among the races, then government funded and operated universities should engage in determining admission on the basis of race. If not, then such universities should not invoke racial quotas.

But of course we have now reached a very difficult and ancient topic of political theory. What function should a government serve in a human community? It must be remembered that what is unique to government is that it may use force for its proper ends. The baker, the butcher, or the candlestick maker may not use force on others to achieve his proper goal, the production of his wares. But government is the sole legitimate user of force in a human community.

It has been thought that government's business is to keep the peace—that is, to settle disputes, to protect people's individual rights. That is the uniquely American tradition. Others have argued that governments should also serve some special goal—e.g., universal material progress, spiritual well-being, or material and spiritual equality among all citizens. Still others have claimed that governments should do whatever the majority of those within the community want them to do. Obviously this is no place to resolve the age-old controversy.

What is important, however, is to remember that whatever one wishes the government to do, one must accept that it will do so by force. That is its ultimate tool. In a case such as Bakke's, the stakes are high because those who win will not have managed to see a universal principle defended by the Court but their own special purpose given the backing of force. In other words, if Bakke wins, then those who want government-funded and operated universities to apply the criterion of standard intelligence and educational scores will have won. If Bakke loses, then those who want government-funded and operated universities to apply the criterion of (statistical) need on the part of some racial group will have won. It seems to me that for the educational institutions the former is a better idea, but it also seems to me that at times the latter may have merit. If, however, the government would disassociate itself from education, we would have both better education and more diversity in striving for various valid social goals, including helping previously neglected racial groups.

As it now stands, it is much more likely that we will have a constant war among the various groups of people with different priorities, claiming that government should serve what members of each group value most. Thus, those who are better served by insisting on intelligence and educational test scores will fight to have those applied, while those who are better served by racial quotas will fight for that. This does not mean that one or the other has greater general standing as regards the public interest. It means that when government has become instrumental in achieving not the common interest but various special interests, the decisions being made have to be disappointing to some.

Given most people's conception of the function of government, one must pity the justices of the Supreme Court. They cannot possibly render a correct decision.