The Volokh Conspiracy

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Re-reading Justice Thurgood Marshall's Opinion in Bakke


In 1978, the Supreme Court issued its first significant affirmative action judgment in Bakke. The Court split 4-4-1. Four Justices argued that the 1964 Civil Rights Act barred the use of race in university admissions. Four justices contended that neither the Act nor the Fourteenth Amendment prohibited the use of race in admissions for remedial purposes, including explicit racial and ethnic quotas. Justice Lewis Powell, writing only for himself, concluded that quotas were forbidden, as was the use of race to remediate past and lingering harms from discrimination, but that universities may take race into account as part of a broader goal of having a "diverse" class.

Civil rights hero Thurgood Marshall wrote an outraged dissent, in which he summed up his reasoning as follows: "In light of the sorry history of discrimination and its devastating impact on the lives of Negroes, bringing the Negro into the mainstream of American life should be a state interest of the highest order. To fail to do so is to ensure that America will forever remain a divided society." Many have found Marshall's dissent, especially his exposition of the historical discrimination against black Americans and its continuing effects, to be compelling.

In re-reading the opinion when researching my new book on racial classifications, though, I noticed something interesting. Marshall refers to "Negroes" and "the Negro" many times in his opinion, but never references any other minority group. What's interesting about that is that the medical school's quota program at issue in Bakke had the following results, according to an appendix to Powell's opinion: 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." In other words, only one-third of the students admitted under the minority quota program were African Americans.

So, even if we agreed with every word of Justice Marshall's opinion, he not only failed to explain why racial quotas were appropriate for Asian and Mexican Americans (the "Hispanic" classification not yet in existence when the litigation commenced), he never even mentions the other groups. As the four-justice opinion on the other side notes, "The inclusion of [Asians] is especially curious in light of the substantial numbers of Asians admitted through the regular admissions process." That opinion also notes that the university was unable to explain "its selection of only the four favored groups—Negroes, Mexican-Americans, American Indians, and Asians—for preferential treatment," as opposed to the myriad other ethnic groups it could have included.

Forty-four years later, much of the discourse around affirmative action preferences still assumes that the only admissions preferences, or at least the only ones that matter, are those for African Americans. Today's op-ed in the New York Times by Justin Driver is a case in point. This is true even though Hispanic Americans outnumber black Americans by about a 4-3 ratio, even greater if you exclude black immigrants and their children.

Given that the driving force behind affirmative action was and pretty clearly continues to be the felt need to redress the effects of long-term discrimination and worse against African Americans, I wonder if we would have been better off if Powell, instead of adopting the diversity rationale, had adopted Marshall's opinion, but still held the UC Davis quota program unconstitutional to the extent it included Mexicans and Asians. Voluntary adoption of quotas for African Americans would have the advantages of transparency, serving the main rationale for affirmative action to begin with, avoiding the dishonesty and lack of transparency that comes along with the diversity rationale, and also not encouraging the growth of DEI bureaucracies that bring a specific and generally counter-productive ideology with them.